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1998 DIGILAW 276 (GAU)

Nima Tsering Khrime v. Rinchin Khandu Khrimey

1998-09-07

B.N.SINGH NEELAM

body1998
This election petition is presented under sections 80, 80A and 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act), the election petitioner being Shri Nima Tsering Khrime, against the returned candidate, figuring here as respondent, Shri Rinchin Khandu Khrimey, in connection with the general election of the Arunachal Pradesh Legislative Assembly, so held in b the year 1995, of No.5. Kalaktang Legislative Assembly Constituency, as per the election result declared on 15.3.95. 2. According to the petitioner, the notification for the election of the said constituency was so made on 8.12.94 and the date for filing of nomination papers was from 4.1.95 to 11.1.95, scrutiny of nomination paper was declared to be held on 12.1.95, the last date for withdrawal of nomination paper was on 14.1.95 and the date of polling was declared to be 11.3.95. After the polling, the counting of votes took place on 15.3.95 at Bomdila Higher Secondary School, Arunachal Pradesh and the result was so declared the same day. It has also been detailed that altogether five persons including the present petitioner and the respondent filed their respective nomination papers to contest from No.5, Kalaktang Legislative Assembly Constituency. However, all other intending candidates other than the petitioner and the respondent withdrew their candidature and thus only two persons, that is, the petitioner and the sole respondent, remained in the fray. The petitioner had submitted his nomination paper as a candidate of the Bharatiya Janata Party, his election symbol being the 'Lotus', and the respondent, Shri Rinchin Khandu Khrimey, had filed his nomination paper as a candidate of the Indian National Congress (I), his election symbol being 'Hand'. After the counting of the ballot papers, it was declared that Shri Rinchin Khandu Khrimey, the respondent, won the election by a margin of 1487 votes. According to the petitioner, the election ofthe respondent, Shri Rinchin Khandu Khrimey from No.5 Kalaktang Legislative Assembly Constituency was vitiated because the returned candidate and his election agent adopted various corrupt practices and the same also being adopted by his workers, even by the returned candidate's wife, with the consent of the returned candidate, as detailed in the petition. According to the petitioner, the election ofthe respondent, Shri Rinchin Khandu Khrimey from No.5 Kalaktang Legislative Assembly Constituency was vitiated because the returned candidate and his election agent adopted various corrupt practices and the same also being adopted by his workers, even by the returned candidate's wife, with the consent of the returned candidate, as detailed in the petition. Because of the returned candidate adopting such corrupt practices, the petitioner claimed that it materially affected the result of the election, and thus, giving the details of the corrupt practices so adopted, the prayer of the petitioner is for declaring the election so held of the said constituency to be void and also for granting any other relief as this Court may deem fit and proper in the background of the facts and circumstances of the case, detailed in this election petition. 3. In short the corrupt practices said to have been adopted, as coming under the purview of section 123 (7) of the Act are, in a nutshell, with regard to distribution of shawls to the lady voters of the constituency as to procure vote in favour of the returned candidate so adopted by the returned candidate and his election agent and the workers; even offering money to some of the voters to the tune of Rs. 5007- for securing votes; also utilizing the Government machinery during election time; misusing his power and position because of the returned candidate at the relevant time being the Minister, Education, Government of Arunachal Pradesh; crossing the ceiling limit of expenditure incurred in the election as detailed in the petition; getting the calendar of 1995 with his photograph so distributed among the Kalaktang people which cost much expenditure, and this act was so done as to come in limelight; with the help of Government machinery even attempting, rather succeeding, to get the present petitioner arrested one day prior to the last date of filing of the nomination; and even calling a meeting at Kalaktang on 21.12.94 using the Government machinery by sending WT message and using utilizing time and energy of local Government officers for collecting people and the Congress (I) workers at the cost of State exchequer, etc. 4. 4. After filing of this election petition, written statement was so filed on behalf of the returned candidate, figuring here as respondent and the respondent in the written statement categorically denied the allegations so put in the petition. 5. Issues were so framed in connection with this election petition as detailed in the order sheet in this regard dated 14.7.97, and they are as under : (i) Whether the election petition so filed by the petitioner is maintainable? (ii) Whether there is any cause of action for the petitioner as to file this petition? (iii) Whether the election of the returned candidate can be declared to be void for adopting corrupt practices as envisaged under section 123 (1), (2), (6) and (7) of the Representation of the People Act, 1951 ? (iv) Whether the election of the returned candidate can be declared void for resorting to corrupt practices as per section 98 and section 100 of the Representation of the People Act, 1951? (v) Whether the petitioner is entitled to be declared to be elected on the ground mentioned in the petition as alleged because of improper acceptance of votes materially affecting the election ? (vi) Any other relief or reliefs which may be in course of hearing deemed fit to be granted. 6. In course of the proceeding, from the petitioner's side four witnesses have been examined. The returned candidate got seven witnesses so examined. They have been duly examined, cross-examined and discharged. Some of the documents filed by the parties have also been marked as exhibits in course of the proceeding, which need not be repeated. 7. However, this will not be out of place to mention that almost at the fag end of the proceeding there was a petition from the petitioner's side as to accept some of the documents as detailed in the petition, which was dated 2.6.98, which was so also objected to by the respondent's side on 30.7.98, which could not be accepted after going through the petitioners petition and the reply to the effect filed by the respondent, as also detailed in the order sheet dated 25.8.98 passed by this Court. 8. Mr. 8. Mr. AS Bhattacharjee, the learned senior counsel appearing for the petitioner has submitted that the petitioner being the voter of the said constituency and being the person affected and also because of his filing this election petition within the prescribed time, has/had the right as to seek relief so sought for in this election petition, and thus this election petition may be said to be very much maintainable, which is also not so objected by the other side's lawyer. 9. As regards issue No. (ii), as to whether the petitioner had cause of action, it is submitted that cause of action arose because of the returned candidate, figuring hereas respondent, adopting corrupt practices, which affected the result of the election very much, even depriving the petitioner to be elected as the representative of the said constituency. According to Mr. Bhattacharjee, the learned senior r counsel, the election petition is in no way lacking in material facts and necessary particulars with regard to the corrupt practices so adopted detailed in the petition, categorically also with regard to the returned candidate utilizing the Government machinery and at the instance of the returned candidate, the police arresting the present petitioner, so that, the petitioner could be deprived of filing the nomination paper giving a fair chance to the respondent to be declared elected uncontested. The Government vehicles were so used, gifts distributed, money offered, as to secure votes in favour of the Indian National Congress and this conduct of the returned candidate, his election agent and other workers and polling agents with the consent of the returned candidate and his election agent, brings them under the purview of the provisions of section 123 of the Representation of the People Act, 1951 and also has left much material on the record to declare the election of the returned d candidate of the said constituency to be void. 10. It has been emphatically argued that as regards issue Nos (iii) and (iv), they have been sufficiently established beyond all reasonable doubt and upto the hilt by the petitioner of the grounds mentioned in the petition being supported by both oral and documentary evidence. 10. It has been emphatically argued that as regards issue Nos (iii) and (iv), they have been sufficiently established beyond all reasonable doubt and upto the hilt by the petitioner of the grounds mentioned in the petition being supported by both oral and documentary evidence. As regards issue No. (v), it is further pointed e out that if this Court feels satisfied with regard to the corrupt practices committed, as claimed by the petitioner, in such circumstances, after declaring the election void, the Court may even declare the present petitioner to be elected from the said constituency. 11. Entering into the evidence of the witnesses so produced, Mr. Bhattacharjee, the learned senior counsel has submitted that PW 1, Prema Dorjee Khrime, is very specific in stating that on the election day at 8.30 AM the Congress candidate's J agent, Shri Tsering Dorjee Khrime (RW 2) approached him at his residence and proposed to offer Rs.500/- in cash to cast his vote in favour of the Congress candidate, though at that time no one was there except his wife. It is pointed out that the person who has offered money, that is PW 1, is examined, who has fully supported the allegation so put with regard to the money being offered by the election agent of the returned candidate and as to establish this allegation, it is further pointed out that it is not material as to whether the money so offered was accepted by the person or not. In the instant case, however, the money so offered was not accepted by PW 1. In support of his this contention, the learned senior counsel for the petitioner claimed himself to be fortified by a reported case, AIR 1967 SC 1445 , Rajendra Prasad Jain vs. Shil Bhadra Yajee & others (para 13). This witness has also given the other details which as submitted supports the petitioner's allegations.12. Referring to the evidence of PW 2, Kejang Topgay Thungon, it is pointed out that this witness is very specific in stating that on the election day at the polling booth where this witness was a voter, the election agent of the returned candidate (RW 2), in his presence and in presence of the people assembling there, approached them to vote for Congress (I) candidate. This witness has also come forward to say with regard to the meeting organised on 21.12.94 at the instance of the returned candidate the notice being circulated by the Extra Assistant Commissioner, that way thus utilizing the Government machinery. This witness claims to have attended the meeting in which, according to him, even the Government machinery was openly used and that after the result of the election this witness claims to be even manhandled because of his not voting for the Congress candidate. In the back ground of these statements so given on oath in the course of proceeding, it is pointed out that this establishes the act of corrupt practices so adopted by the returned candidate making it a fit case for declaring the election void. 13. PW 3, Shri Riching Dorjee Khrime, happened to be the voter of Rupe Polling Booth and a BJP worker. According to him, on 10.1.95 when he was at Rupe, the Officer In-charge of Rupe PS (Shri Niranjan Kalita, RW 7), without any rhyme or reason assaulted him. He is also on the point with regard to the present petitioner also on flimsy ground apprehended by the Officer In-charge, Rupe PS, one day prior to the last date for filing of nomination, with an intent as to deprive the petitioner to file his nomination, which was so done at the instance of the returned candidate. 14. PW 4 is no one else but the petitioner himself. He has categorically given the details of all the allegation so put in this election petition and according to the learned senior counsel for the petitioner, Mr. Bhattacharjee, this witness had also well stood the test of cross-examination. According to the learned senior counsel for the petitioner, thus the witnesses so examined have well stood the test of cross examination, there is no major contradictions in their evidence, by looking into the documents so filed at the time of filing this election petition, which have so also been marked as exhibits, by the plain reading of the WT message, marked as Ext 1, it will transpire as to how the Government machinery was used giving the details of the programme of the respondent with direction to collect the office bearers, workers, etc of the Congress (I) at the cost of the Government and at the instance of the then Education Minister, that is the respondent. As regards Exts 2 and 3, which are the pamphlets, those have not been objected to; but much emphasis is put on Ext 4 which is a calendar so published giving the bust size photograph of the returned candidate, and the calendar, is of the year 1995. According to the petitioner, this calendar was so distributed among the voters widely as to expose his candidature in a very cunning way in the shape of the calendar which can also very well be termed to be an act of adopting corrupt practices. 15. Mr. AS Bhattarcharjee, the learned senior counsel has referred to a reported case, AIR 1975 SC 2299 , Smti Indira Nehru Gandhi vs. Raj Narain and has banked much upon this ruling on the point that in the background of the facts and circumstances coupled with the material so available on the record, oral and documentary, the corrupt practices so adopted by the returned candidate is proved, leaving no other hypothesis than the guilt of the present returned candidate, which makes the election under challenge to be declared as void, particularly, a Mr. Bhattacharjee, the learned senior counsel has referred to paragraphs 218, 384,414 and 472 of this judgment. 16. That being the position, as submitted by the learned senior counsel for the petitioner, thus the petitioner has succeeded in establishing the corupt practices so adopted by the returned candidate and his election agent and by other workers » with their consent and, therefore, the relief so sought for at the foot of the election petition be thus given, particularly, under the provisions of section 98 (b) and (c) of the Representation of the People Act, 1951. 17. Mr. AK Phukan, the learned counsel for the respondent, on the other hand, has submitted that in the course of the proceeding the petitioner has utterly failed as to establish the allegations of the respondent adopting corrupt practices c for his wrongful gains by influencing the voters by offering gifts etc or using Government machinery. Even the pleadings in this election petition have not disclosed all material facts, some of them being vague and thus, on no account, it can be said that corrupt practices so claimed to have been adopted, have been proved beyond all reasonable doubt by showing the chain of circumstances. Even the pleadings in this election petition have not disclosed all material facts, some of them being vague and thus, on no account, it can be said that corrupt practices so claimed to have been adopted, have been proved beyond all reasonable doubt by showing the chain of circumstances. It is also submitted , that some new facts have been introduced coming from the mouth of the petitioner's witnesses and it is a set principle of law that a case which is not set up in the pleadings cannot be looked into, nor any evidence could have been allowed to be. led on that. The standard of proof of corrupt practices is a strict one, the onus being heavily upon the person putting such allegations. Mr. Phukan the learned counsel for the respondent has also submitted that the election petition is lacking e in material facts and necessary particulars as to the allegation, which gives the fatal blow to the election petition so preferred in the Court of law and in support of this contention, he has also referred to a reported case, AIR 1994 P & H 32, Buta Singh vs. Sher Singh. A person democratically elected cannot be unseated unless there is cogent material to prove corrupt practices adopted, as defined under section 123 of the Act. In all fairness, Mr. Phukan, the learned counsel, has / not argued much with regard to the maintainability of the election petition; but has submitted that as regards issue Nos (iii) and (iv), by an analytical scrutiny of the evidence available on the record, it will transpire that from the petitioner's side no legal evidence is adduced in support of the allegations, particularly, so put with regard to the corrupt practices so adopted, as alleged, by influencing the voters and utilizing the Government machinery, even spending money beyond the ceiling limit. 18. Referring to the evidence of RW 7 it is further pointed out that the Officer In-charge of Rupe PS, who was examined as a witness, has given the details of the criminal case number in connection with which the present petitioner was so apprehended and it is not that the said arrest was so made as alleged at the instance of the returned candidate, as to deprive the petitioner as to file nomination paper fa with an intent that the returned candidate may be declared elected uncontested. It is also submitted by referring to the evidence, that the witnesses so examined on behalf of the petitioner cannot be said to be the competent witnesses because mostly persons said to have been approached, have not been examined. Even the petitioner has not cared to get his election agent examined. As regards the 1995 calendar so printed and distributed, the same is claimed to have been done in December, 1994, and the meeting dated 21.12.94 said to have been arranged, for which WT message was so sent, as claimed, utilizing Government machinery, according to the respondent, no such meeting was arranged, but taking the worst view which is not admitted, even if there was such a meeting called for, bringing the conduct under the purview of the provisions of section 123 of the Act, it has to be seen that the corrupt practice is either adopted by the candidate himself or by his election agent, or with the consent of the election agent of the candidate. In the instant case, admittedly, in the month of December, 1994, the present respondent was not a candidate declared contesting in the ensuing election to take place in March, 1995. The date of filing of nomination was in the month of January, 1995 and that way too in no way it can be said that printing of a calendar or holding of any meeting though not accepted, on 21.12.94, can bring the returned candidate under the purview of section 123 (7) of the Act making him liable for adopting corrupt practices. 19. With regard to the shawls distributed or money offered, as claimed by the petitioner, it is however pointed out that the material persons cited in the allegations are not presented as witnesses from petitioner's side; the respondent's wife and his election agent, figuring as RWs 1 and 2 have totally denied of their involvement hi any way offering money or distributing gifts; and with regard to the money spent beyond the ceiling fixed, the allegations are vague, not being supported by any material and thus not liable to be relied upon. The petitioner, it is pointed out, has utterly failed to establish the use of Government vehicle by the respondent during the period of election, after his candidature being filed and accepted and in this connection attention is drawn to the Annexures so filed on behalf of the respondent at the time of filing of the written statement, some of them being marked as exhibits, to show that even on certain complaint when enquiry was held by the district level officers relating to some of the complaints so lodged by the petitioner, they were found baseless. 20. Mr. Phukan, the learned counsel for the respondent has also pointed out that in the normal courses, relating to any allegation of corrupt practices so put, such knowledge of corrupt practices being adopted either may be from personal source, or through others, or through documents. In the instant case while going through the election petition with that of the evidence so adduced on behalf of the petitioner, it will transpire that relating to most of the allegations, the petitioner claims to have for holding meeting, or with regard to the arrest of the petitioner one day prior to the filing of the nomination. A WT message is an unsigned document. Unless the same is confirmed by the subsequent signed application, no reliance can be placed on such message and in support of his this contention, Mr. Phukan, the learned counsel, has referred to a reported case, AIR 1993 SC 2633 , District Magistrate & others vs. G. Juthishankar. As regards the photocopies so filed of some of the documents by the petitioner putting stress for admission of the same, which has rightly been not admitted (refer the order so passed in this proceeding dated 25.8.98 referred to earlier), it is pointed out that such photo copies filed are not admissible nor liable to be proved as documents and in support a of his this contention, Mr. Phukan, the learned counsel for the respondent has referred to another reported case, AIR 1989 Allahabad 17, Smti Manorama Srivastava vs Smti Saroj Srivastava. 21. Phukan, the learned counsel for the respondent has referred to another reported case, AIR 1989 Allahabad 17, Smti Manorama Srivastava vs Smti Saroj Srivastava. 21. On the point that any action of the present respondent prior to the filing of the nomination paper cannot come under the purview of corrupt practices , because the same has to be adopted/done by the candidate or his/her election agent, the learned counsel for the respondent has referred to a reported case, (1994) 2 SCC 392 , Mohan Rawale vs. Dada Saheb. It is further pointed out that any action of the polling agent cannot be said to be an act done with the consent of the candidate or the election agent, and thus, onus is/was heavily upon the petitioner to prove that the polling agent acted in a particular manner indulging in corrupt practices with the consent of the candidate or his election agent which, in the instant case, has not at all been established, though, casually some of the acts of the polling agent of the returned candidate is criticised. In the background of the facts and circumstances of the case, the learned counsel for the respondent, Mr. Phukan, has submitted that election petition is vague and there is no cause of action for the petitioner to seek relief. The learned counsel, Mr. Phukan has referred to 1987 Suppl SCC 93, Dharti Pakar Madan Lal Agarwal vs. Rajiv Gandhi, particularly, its paras 8 and 14 are referred and with regard to the ceiling of expenses so fixed, reference is also made to this reported case and it is submitted that the allegation so put with regard to crossing the ceiling of expenses is completely vague, not being supported by any other material. AIR 1986 SC 1253, A.Hussain vs. Rajiv Gandhi, is referred in connection with the manner of corrupt practices so incorporated in section 123 of the Act and a reference is made in detail to its paragraph 18. Reference is also made to a case so decided in 1992 Vol IISVLR (C) 429, KV Narayan Rao & others vs. P. Rao & others, a photocopy of the judgment is filed in support of his contention with regard to the fact that adoption of corrupt practices by the returned candidate in the back ground of the facts and circumstances of the case has not been proved. 22. 22. On these grounds, hence the prayer on behalf of the respondent is that taking into consideration the facts and circumstances and the material so available, oral and documentary as a whole, it transpires that it is a fit case in which this election petition be dismissed because of the present petitioner not in any way establishing in connection with the allegations of corrupt practices etc so alleged, g and thus, particularly, issues (iii) and (iv) be decided against the petitioner, which are the main issues claimed to be adjudicated between the parties .23. Since, in the course of argument both the sides' lawyers have rather hammered much on issue Nos (iii) and (iv), not arguing on other issues because, according to them, the decision on these two issues so framed will decide the fate of this election petition, only these two issues, that is issue Nos (iii) and (iv) are thus particularly taken up as discussed below. 24. For the purpose of securing purity and freedom of election, candidates should be answerable for their acts, or the acts of their agents, and in that back ground section 123 of the Representation of the People Act, 1951 has thus defined corrupt practices for the purposes of this Act and for the furtherance of the prospect of the candidate's election if any such act is done indulging in corrupt practices, the Court dealing with the proceeding under the provisions of section 98 of the Act may make any order declaring the election void, also declaring the petitioner duly elected, if the corrupt practices so claimed to have been proved; or, dismissing the election petition under section 98 (a) of the Act in case of the corrupt practices so claimed not being proved to have been committed. 25. Furthermore, outside the statutory provisions there is no right to dispute an election and the Representation of the People Act, 1951 itself contains the procedure in which any right claimed in connection with an election dispute can c be raised. The provisions of the Code of Civil Procedure is applicable to the extent permissible under section 87 (1) of the Act and so the provisions of the Evidence Act under section 87 (2) of the Act. 26. In the background of the provisions so contained in the Act and as to decide the issues so framed, particularly, those issues pressed into service issue Nos. 26. In the background of the provisions so contained in the Act and as to decide the issues so framed, particularly, those issues pressed into service issue Nos. (iii) and (iv), it is necessary as also to see the evidence so adduced in support of the allegations so put in the present election petition. It thus necessitates discussion on the oral and documentary evidence so produced, which is so discussed below. 27. Paragraphs 1 to 6 of the election petition, it transpires, are the introductory paragraphs. Paragraph 7 of the election petition speaks with regard to the returned candidate's wife (RW 1), Smti Tongchen Jumba Khrimey, and his election agent (RW 2), Shri Tsering Dorjee Khrimey, coming to the Medical Colony locality at Kalaktang on 7.3.95 in course of election campaign of 1995, giving a round of the locality people and as to influence the voters distributing woollen shawls to the lady inmates of the locality. Two of the ladies are named, particularly, to be the persons approached and they are Mrs Tangchi Rema and one Mrs Dawa Gyadi; but, surprisingly enough, these two ladies have not been examined as witnesses on behalf of the petitioner who could have been said to be the most competent witnesses on this point. According to the petitioner, his agent, Rinchin T. Bapu, had witnessed the aforesaid act of distribution of shawls, etc as alleged by the returned candidate's wife and his election agent; but the election agent of the petitioner, Shri Bapu, has also not been examined in course of the proceeding. The election agent and the wife of the returned candidate (respondent hearin), figuring as RWs 2 and 1, respectively, have denied of having committed any such act. The petitioner is said to have been furnished with the information relating to the allegation at para 7 of the election petition through his election agent, Shri RT Bapu, who is not a witness in this proceeding. That being the position, it can be safely concluded that because of the non-examination of Mrs T. Rema and Mrs D. Gyadi and the election agent of the petitioner, Shri Bapu, this allegation so raised has not been substantiated at all. That being the position, it can be safely concluded that because of the non-examination of Mrs T. Rema and Mrs D. Gyadi and the election agent of the petitioner, Shri Bapu, this allegation so raised has not been substantiated at all. Furthermore, in the written statement so filed by the respondent, an affidavit of Mrs D. Gyadi is claimed to have been filed denying the allegation with regard to any proposal made to her for accepting any gift, or her accepting the same. In para 6 of the written statement so filed by the respondent this allegation has also been in clear words denied. 28. As regards the allegation so put in para 8 of the election petition, it is alleged by the petitioner that on 8.3.95 the election agent of the returned candidate Shri Tsering Dorjee Khrimey along with one worker of the respondent, Shri AC Norbu Khrimey went to Village Chergaon(apart of No.5, Kalaktang Assembly Constituency) at about 1 o'clock in the noon and after reaching there they went , around the various houses of the said village requesting the voters to vote for the respondent in the ensuing election,to be held on 11.3.95 and in that process, the election agent of the returned candidate, Shri TS Dorjee Khrimey himself handed over huge amount to the villagers and at about 2.00 PM in the noon offering Rs.500/- to Shri Prama Dorjee Khrimey (PW1) asking him to vote for the Congress and also approached Lam Norbu Thungon and offering him also Rs.500/-. This allegation so put, it transpires, is totally denied in para 7 of the written statement and that Shri Lam Norbu Thungon has not even been examined on behalf of the petitioner. After going through the evidence of PW 1 with that of the details of the allegations at para 8 of the election petition, a major contradiction is so found with regard to the date and timing on which this witness is said to have been approached. According to the petitioner in para 8 of the election petition, PW 1 is said to have been approached on 9.3.95 at about 2.00 PM, whereas this witness in his deposition has altogether given a different date and timing of his being so approached offering Rs.500/-. According to the petitioner in para 8 of the election petition, PW 1 is said to have been approached on 9.3.95 at about 2.00 PM, whereas this witness in his deposition has altogether given a different date and timing of his being so approached offering Rs.500/-. According to his evidence so recorded in course of proceeding, it was on the election date, that is 11.3.95, that too at 8.30 AM, that this witness was so approached by the election agent and worker of the returned candidate. Because of this major contradiction so cropping up, this witness cannot e be said to be trustworthy and thus the allegation so put with regard to offering of Rs.500/- so detailed in para 8 of the election petition, can also not be accepted. It further transpires that this witness has well stood the test of cross-examination. Furthermore, in course of his cross-examination he has also stated with regard to offering of Rs.500/- by the Congress (I) agent so made on the date of election, which is for the first time revealed by him in this Court. That also itself is a / matter of suspicion with regard to the source of information in this connection so given to the petitioner, on the basis of which he claims to have put the allegation as incorporated in the election petition at para 8. 29. The allegation so put in para 9 of the election petition is quite vague without being substained by detailed material and on this count even no specific evidence is so led and thus, cannot be looked into. 30. The other allegation so put at para 10 of the election petition is that the returned candidate after casting his vote at No.l Polling Station at Kalaktang Town Club at about 7.30 in the morning, he came out and openly started mixing with various voters and canvassing for himself and also distributed money for voting in favour of Congress (I) and in that connection one Dorjee Tsering is said fa to have been approached and Rs.200/- was so offered to him to cast his vote and similar offer was also made to one Shri Wanchen and this act of the returned candidate constituted adopting corrupt practices as defined under section 123 of the Act. The source of this information to the petitioner is his election agent, Shri Bapu. The source of this information to the petitioner is his election agent, Shri Bapu. In this regard, the allegation so put is specifically denied by the respondent in para 10 of his written statement. Furthermore, the election petitioner has failed to examine Shri Dorjee Tsering and Shri Wanchen, the two persons said to have been approached and also the person who is said to have given him the information, Shri Bapu, the election agent of the petitioner, has also not been examined. In this background the whole story so propounded in para 10 of the election petition becomes hearsay, not even been substantiated by the material witnesses and thus in my considered opinion, has no leg to stand. 31. Another allegation so put in para 11 of the election petition is that on 11.3.95 in the morning hours the election agent and the wife of the respondent after casting their votes at Polling Station No.24 at Rupe Village started mixing with the voters assembled there approaching them to vote for Congress (I) and made monetary offers and in that process they met one Cheng Tsering Khrime and Shri Cheizang Khrime in front of the Government Higher Secondary School. The petitioner is said to have been himself present at that time. This will not be out of place to mention that while this petitioner was so put as PW 4 for giving his evidence, in the course of his depositing so taken nowhere the election petitioner d has whispered a single word about this, whereas RWs 1 and 2, the wife and the election agent of the respondent, have denied of any such occurrence taking place. The person said to have been approached has also not been examined. 32. The person said to have been approached has also not been examined. 32. As regards the allegation so put in para 12 of the election petition, it is the case of the petitioner that vide notification, the election process started from 8.12.94 and that at that time the returned candidate was holding the post of Minister, Education, Government of Arunachal Pradesh, who started utilizing the services of Government infrastructure as well as the Government machinery in furtherance of his election prospect with a view to organise his workers as well as the rank and file of the District Congress (I) Committee, for which a WT message was sent for organising a meeting on 21.12.94 at Kalaktang and Government machinery was being utilized as detailed in the petition. At para 11 of the written statement so filed by the respondent, there is a total denial of this allegation. Furthermore, it transpires that no Government witness was so examined on behalf of the petitioner in support of his this stand. The Circle Officer is also examined as RW, who has also denied of any meeting being held on 21.12.94, as claimed, at Kalaktang. PW 4, the petitioner in his cross-examination is also specific in saying that he personally had not seen the returned candidate in the meeting so held on 21.12.94. In support of the contention that the meeting was so held, on behalf of the petitioner, Shri Kejang Topgay Thungon, (PW 2), is produced, who speaks with regard to his attending the meeting, also with regard to his being beaten up by the CRPF Jawans and the Officer In-charge of Rupe PS after the election, as claimed by him, because of his not voting for the Congress. RW 5 Shri Dorjee Khandu Khrimey, who was theCongress (I) President at that time, denies of any such meeting at Kalaktang being held on 21.12.94. So the meeting is^also denied to be held on that date and at that place by PW 6, the returned candidate. 33. RW 5 Shri Dorjee Khandu Khrimey, who was theCongress (I) President at that time, denies of any such meeting at Kalaktang being held on 21.12.94. So the meeting is^also denied to be held on that date and at that place by PW 6, the returned candidate. 33. Regarding this allegation so put in para 12 of the election petition, since it has been admitted that in December, 1994, the respondent was Education Minister, Government of Arunachal Pradesh, as per the provision so contained under a section 123 (7), proviso, of the Act, he was entitled for some coverage as the Minister, which was expected to have been discharged and might have been discharged by the Government machinery; but that in no way be taken to be any corrupt practice adopted by the respondent, when as per the respondent's case, even if the WT message so sent was not sent with his consent, which also was not proved by the petitioner, onus being heavily upon the petitioner to establish the same by calling for the original document relating to the WT message so sent, as claimed, at the instance of the Private Secretary of the Minister. At the stage it has also to be seen that for argument's sake, even if it is accepted that any such meeting was so held on 21.12.94, but whether prior to the filing of the nomination of the candidate, any such action of a person could be taken to be as committing corrupt practices when, in the instant case, the candidature is filed by the returned candidate in the month of January, 1995, because the date for filing of nomination was in between the period from 4.1.95 to 11.1.95. In this connection, I wholly rely on the reported case so cited on behalf of the respondent, AIR 1975 SC 2299 , Smti Indira Nehru Gandhi vs. Raj Narain (supra), and in particular, by going through its paragraphs 384,385 and 458 and by also looking into the provisions of section , 123 of the Act, a candidate is the person who claims to have been nominated as a candidate at an election and not one who is yet to be nominated. The provisions of section 123 of the Act reflects with regard to the act of a candidate or his agent or of any other persons with the consent of the candidate or his election agent, of any gratification or misuse of Government machinery, etc. In that light, on 21.12.94, if at all the meeting was so called and any promise offered in the meeting (though totally denied from respondent's side), it can safely be stated to be an act not done by the candidate under the meaning of section 123 or section 100 (1) (b) of the Act and, that being the position the petitioner, in my considered opinion, cannot have the advantage of meeting allegation so put in para 12 of this election petition, which also goes in favour of the returned candidate, the respondent. 34. The allegation so put in para 13 of the election petition also relates to the said meeting held on 21.12.94 at Kalaktang and the view so opined at the preceding paragraph while dealing with the allegation so put in para 12 of the election petition, makes this allegation also not in any way affecting the election in which the respondent is declared to have been elected. 35. The next allegation so put in para 14 of the election petition with regard to resorting of the corrupt practices of bribery etc, is in connection with the returned candidate and his election agent threatening the workers and supporters of the petitioner as well as the voters of No.5, Kalaktang Legislative Assembly Constituency and in one such incident the election agent of the respondent as alleged, met two of the workers of the petitioner, namely, Shri Tsering Norbu and Shri Wangdi Khrime on 7.3.95 at 3.30 PM at Rupe Bazar, taking them to the house of the returned candidate, Shri Richin Khandu Khrimey, and in his courtyard and asking them to withdraw their support so given to the petitioner and to work for the Congress (I) candidate, etc as detailed in the petition. The respondent has totally denied this allegation, rather in para 13 of the written statement it is pointed out that the Central Observers on enquiry held and also found these allegations false. The respondent has totally denied this allegation, rather in para 13 of the written statement it is pointed out that the Central Observers on enquiry held and also found these allegations false. In this connection, it is pertinent to note that the two persons, namely, Shri Tsering Norbu and Shri Wangdi Khrimey, said to have been approached and taken to the house of the respondent and unduly influenced, are not examined on behalf of the petitioner as witnesses. RW 6, the returned candidate, has accepted knowing these two persons, but has totally denied with regard to his even visiting his native place on 7.3.95. In the background of Shri Tsering Norbu and Shri Wangdi Khrimey not being examined, this allegation so put is not substantiated in course of the proceeding, which also fails. 36. The next allegation so put in para 15 of the election petition is with regard to the present petitioner being arrested by the Officer In-charge of Rupe PS on 9.1.95 one day prior to the last date of filing of the nomination which, as alleged, was so done at the instance of the returned candidate as to deprive the petitioner as to file his nomination. He is said to have been so apprehended alongwith his nephew and the nephew is also examined as witness on behalf of the petitioner in course of trial. In this connection, the evidence of RW 7 is of utmost importance, who is no one else but the Officer In-charge of Rupe PS at the relevant time. This witness, Shri Niranjan Kalita, has given the details showing that the arrest of the petitioner was so made on 9.1.95 in connection with Rupe PS Case No. 1/95, so registered against this petitioner under sections 353/5067 188 reads with section 34 of the IPC and also under section 27 of the Arms Act. This witness, Shri Niranjan Kalita, has given the details showing that the arrest of the petitioner was so made on 9.1.95 in connection with Rupe PS Case No. 1/95, so registered against this petitioner under sections 353/5067 188 reads with section 34 of the IPC and also under section 27 of the Arms Act. This witness when suggested has denied of his having any ulterior motive as to apprehend the petitioner, that too, at the instance of the returned candidate, as to deprive the petitioner from filing the nomination, which is so also emphatically denied by the returned candidate of having his any knowledge of the same prior to the arrest and his having no hands at all, as alleged, provoking the Officer In-charge of Rupe PS to arrest the petitioner on flimsy grounds, rather, the arrest was so made in accordance with law in course of a criminal proceeding. In the background of the facts and circumstances detailed in this paragraph, I hold the view that the petitioner has thus failed to substantiate that the arrest of the petitioner on 9.1.95 was so made at the instance of the returned candidate, attempting to deprive him from filing the nomination, which was so being filed by the petitioner on the last day after being bailed out in connection with Rupe PS Case No. 1/95. 37. As regards the allegation so put in para 15 of the election petition, it is also in a way in continuity of the allegation at para 14 of the petition, which has already been discussed in the preceding paragraph of this judgment. 38. The allegation of involvement in booth capturing so put up against the respondent and his workers and causing disturbances at No. 11 Polling Station at Yollonguri Village, it transpires, has also not been established because no material evidence is so put forward and as regards the brother of the respondent said to have done such act, he has also been examined as RW 5, who has totally denied the same and has given a picture contrary to the allegation and has also well stood the test of cross-examination. 39. It also transpires that certain allegations are put against the polling agent of the returned candidate. 39. It also transpires that certain allegations are put against the polling agent of the returned candidate. For the act of polling agent the candidate cannot be held to be responsible particularly, relating to the allegation of corrupt practices a adopted unless the person is claimed that such act was so committed with the express consent of the candidate, which has not at all been proved/substantiated by the petitioner. 40. As regards the use of Government vehicle and other private vehicles, the allegations so put are vague, also not being substantiated. 41. The other allegation so put is with regard to the returned candidate not keeping the limit on the expenditure as per the ceiling fixed and his contravening the provisions of section 77 of the Act. In this connection, it will not be out of place to mention that the petitioner has not given in course of proceeding any cogent material as to establish the same, which was so incumbent on his part to establish. 42. As regards the calendar of 1995 said to have been printed and liberally distributed, the petitioner has failed to establish with regard to the said calendar being printed in course of election campaign after the nomination of the candidate (respondent) being filed in coming heavy expenditure hence, this allegation also cannot be accepted. 43. That way discussing the evidence, oral and documentary, threadbare and taking into consideration the totality of the situation as a whole, I find that the evidence so adduced on behalf of the petitioner is too general in nature and this does not establish all the relevant facts necessary to prove corrupt practices and in that light, particularly, issue Nos (iii) and (iv), on which the learned counsel for the petitioner has banked much, can safely be decided against the election petitioner, which is so hereby decided against the election petitioner. 44. 44. Discussing threadbare the evidence so adduced on behalf of the parties, particularly, the evidence so adduced by the returned candidate being, not discussed at length because of the onus being so heavily upon the petitioner to establish the same, and the petitioner's evidence so adduced being found not trustworthy, it is held that no corrupt practices have been proved to have been committed by the respondent/his election agent, rather, their acts/actions during this relevant period / can safely be said to be free from any corrupt practices being adopted. The emphasis of law is to avoid a fishing or roving enquiry arid for that a cheek and brake have been put on the persons filing election petitions alleging the returned candidate adopting corrupt practices as to establish the same beyond all reasonable doubt leaving no other hypothesis than the guilt of the respondent, which in the instant case has not been proved. It is in t his light that the Apex Court in a reported case, AIR 1984 SC 621 , Daulat Ram Chauhan vs. Anand Sharma, has held, as particularly detailed in paras 19 and 20 of the said judgment, that the allegation of corrupt practice and the material so advanced in course of proceeding should be so clear and specific that it be not left to time, chance and conjecture for the Court to draw an inference by adopting an involved process of reasoning and in that light it is also held by the Apex Court that as a logical consequence where the allegation of fraudulent practice is open to other hypothesis also, the pleadings of the corrupt practice in such circumstances must fail, for fair and free election in this democratic system the persons involved in the election are expected to show their conduct permissible within the four walls of the Act and if the same is violated, naturally the person aggrieved by putting objection can challenge the election/But, on the other hand, it is also, as specifically detailed in the Act itself, that the person protesting and challenging the election result has to establish the allegation/allegations upto the hilt and beyond any reasonable doubt, for which, over and above the pleadings with the details so given, it is expected of the person challenging the election as to substantiate the allegations by oral and documentary evidence in course of trial. In the instant case, it is also found that the material witness on the point of the allegations have not been produced by the petitioner as to substantiate the charges, that has made, in the present case, so many allegations put based on hearsay evidence. 45. Consequently because of the allegations of corrupt practices not being proved by the petitioner to have been committed by the respondent/his election agent, and in the background of the facts and circumstances and the conclusions so arrived at as discussed above, this election petition thus stands dismissed under the provisions of section 98 (1) of the Act. No separate order as to costs. 46. As provided under section 103 of the Act, authenticated copies of this decision be sent to the Election Commission and the Speaker of the Arunachal Pradesh Legislative Assembly, forthwith.