Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 842 (PAT)

Izhar Ahmad v. Mahabir Prasad

2003-08-13

P.K.DEB

body2003
Judgment P.K.Deb, J. 1. The election of 86 Ghanshyampur Legislative Assembly Constituency which was held in the month of February, 2000 has been challenged in this election petition which has been filed under Secs. 80, 80A and 91 of the Representation of People Act, 1951. (hereinafter shall be mentioned as the Act) The election of returned candidate, namely, Dr. Mahabir Prasad who happens to be the sole respondent had been called in question. The election petitioner was a nominee of Janta Dal united and he contested the said election and being lost to the sole respondent. The Sub-Divisional Officer Pirol District Darbhanga, namely, Ram Udgar Mahto was the Returning Officer in the election in question. The programme of the election was as follows, as per the notification issued by the Election Commissioner of India:- - 1. Last date for filling nomination paper- 3-2-2000 2. Date of scrutiny of nomination paper- 4-2-2000 3. Last date forwithdrawal of candidature- 7-2-2000 4. Date of poll- 22-2-2000 5. Date of counting- 25-2-2000 6. Repelling of five booths was held on- 24-2-2000 2. In accordance with the aforesaid election programme the petitioner, the Respondent and 9 others had filed the nomination papers which were accepted by the Returning Officer. Two candidates, namely, Ramanand Yadav and Aftab Ahmad had withdrawn their candidature so in all only 9 candidates including the election petitioner and the respondent remained in the fray. The petitioner who was an official candidate of Janta Dal united had allotted with the symbol of arrow (Teer) and the respondent who is an official candidate of Rastriya Janta Dal was having the symbol of Lantern. Similarly the other candidates were having different symbols as has been elaborately stated in paragraph 8 of the election petition. On the date fixed polling was held on 22-2-2000 but then again on 24-2-2000 repelling was conducted on Booth Nos. 34, 53, 54, 114 and 224 of the impugned Assembly Constituency election. Counting started on 25-2-2000 and concluded on 26-6-2000. After completion of counting the Returning Officer had declared the respondent as elected. The election of the respondent has been challenged both on the ground of corrupt practice of booth capturing and undue influence. 3. It has been asserted in the election petition in paragraph Nos. 14, 15, 16, and onwards as to how the election was being vitiated by booth capturing and undue influence. The election of the respondent has been challenged both on the ground of corrupt practice of booth capturing and undue influence. 3. It has been asserted in the election petition in paragraph Nos. 14, 15, 16, and onwards as to how the election was being vitiated by booth capturing and undue influence. According to the petitioner a few days before the poll the petitioner and his election agent had filed several petitions before the Chief Election Commissioner, New Delhi, Chief Electrol Officer, Bihar, Election Observer, Darbhanga, Commissioner Darbhanga, District Magistrate, Darbhanga, Returning Officer cum SDO, Pirol and Direct General of Police, Patna wherein they alleged that they had apprehension of booth capturing at the instance of RJD candidate, the sole respondent, in large scale and, as such, requested the authorities concerned to take adequate security for conduction free and fair poll. They had mentioned several booths namely, Booth Nos. 267, 268, 266, 277, 278, 207, 205, 206, 265, 201, 202, 209 and 57 to 106 as supersensitive and they prayed for military deployment, if not, to be protected by para military force on the date of poll. It has also been asserted that Shri Chandra Kishore Jha a BJP leader of Ghanshyampur had also sent a petition to the Election Commission, New Delhi for declaring the above mentioned booths as sensitive and prayed for deployment of military and para military force. The petitioner further submitted that petitions were filed both before the law and order authorities and also the authorities of the election in the Assembly constituency but still no force were deployed in those booths. It has also been mentioned that the respondents being a senior cabinet rank Minister of the Government of Bihar at the relevant time had influenced the local Officers who were involved in the election to secure his wining the election. The petitioner could scent about it and then informed the same to the Chief Election Commissioner New Delhi and also the Chief electoral Officer Bihar. But inspite of such complaint petition nothing had happened. 4. The petitioner could scent about it and then informed the same to the Chief Election Commissioner New Delhi and also the Chief electoral Officer Bihar. But inspite of such complaint petition nothing had happened. 4. On the date of poll while polling was going on at both No. 23 suddenly at 9 a.m. several persons named including Luxmi Yadav with the consent of the respondent alongwith 20 to 25 anti social elements armed with bomb, gun and three knot rifles, Teer Cartridges etc., came to the booth and started scaring away voters who were standing in the queue and when the voters out of fear being scared away they snatched the ballot papers from the Presiding officer and put forged thumb impression or signatures of the concerned voters on the counting foils of the ballot papers and then putting Seal over them had entered the ballot papers into the ballot box. According to the petitioner such rampant booth capturing and corrupt practice was made by anti social element and veteran criminals who were hired by the sole respondent and also with the consent of the respondent they had captured the booth. The genuine voters could not franchise their rights. A petition regarding the incident was filed by one Maheshwar Prasad Yadav and 10 other voters of the said booth to the Chief Election Commissioner New Delhi. 5. It was further alleged that similarly at Booth No. 52 also at the same time Mahabir Yadav the sole respondent with Rabindra Kumar Pandey and others who were named specifically at paragraph 21 alongwith 8/10 Gundas captured booth No. 52 being armed with deadly weapons. After firing in air by the own Bhagina of the respondent, namely Rabindra Kumar Pandey the genuine voters were scared away and the same way as mentioned above had put the ballot papers inside the ballot box. It has further been alleged that Ram Bilas Yadav, an independent candidate had sent a petition to the election observer through fax giving detailed incident of booth capturing. It has also been asserted in paragraph 22 polling in booth Nos. 115 and 166 and 117 and 118 were also not peaceful and impartial. According to the election petition those booths were looted by the anti social elements engaged by the sole respondent. It has also been asserted in paragraph 22 polling in booth Nos. 115 and 166 and 117 and 118 were also not peaceful and impartial. According to the election petition those booths were looted by the anti social elements engaged by the sole respondent. The Polling agent of the petitioner of booth No. 115 and his sadri were looted away by the anti social elements. The polling agent had also filed a petition before the Sub-Divisional Officer at Pirol. On 22nd February, 2000 the petitioner sent a petition through fax message to the Chief Electoral Officer, Bihar Patna alleging the booths looting and capturing by the Gundas and also referred earlier information regarding deployment of military force and Rapid Action Force which were not done. It was also maintained that booth Nos. 85, 86, 88, 90 and 91 were also looted by the anti social elements and polling booth Nos. 42, 43, and 44 were captured by the musclemen and near relatives of the respondent Mahavir Prasad. According to the election petitioner several polling booths were looted away while capturing the booths, details of which were mentioned in paragraph 23 of the election petition. It has also been mentioned in the election petition that on the date of pool Presiding Officer of booth Nos. 53 and 54 had asked the Returning Officer for proper security arrangement which were not there and on those booths repolling was made. On the date of counting the election agent of the petitioner informed the central observer that the diaries of the Presiding Officers of different booths were not available the seal of the boxes were broken and there were no sign of the polling agent on the seal of the box. The names of those booth numbers have been given in paragraph 25 of the election petition. Thus, it has been stated that the respondent for winning the election had indulged in corrupt practice and undue influence in booth capturing as defined under Sections 122 and 123 (8) of the Representation of People Act 1951. Then there were allegations as to how the petitioner was being harassed and denied of his own right to get certified copy of different documents as provided under Rule 93 (2) of the Conduct of Election Rules 1961. Then there were allegations as to how the petitioner was being harassed and denied of his own right to get certified copy of different documents as provided under Rule 93 (2) of the Conduct of Election Rules 1961. Soon after the result was published and then the present petition has been filed under the said sections of the Act for declaring the election of the sole respondent to be void. 6. The above election petition has been contested by the sole respondent. In the written statement he has stated usual pleas of non-maintainability of the election petition urging that the same should be dismissed at the outset under Sec. 86 of the Act, it has also been stated that as the allegation is of corrupt practice and when the name of the Oath Commissioner has not been there then the election petition is required to be dismissed as the respondent did not get true copy as required u/s. 81 (3) of the Act and in such violation the election petition is required to be dismissed. All the allegations made under Secs. 1 to 12 then 27 to 30 and then 32 to 35 being matters of official records, it is asserted that the same must be proved by the election petitioner. It is stated that there is no allegation of corrupt practice against him and what has been stated are false, frivolous and concocted. It has further been stated that mere filing of petitions before the different authorities regarding booth capturing do not mean that there was illegality and booth capturing during the election. His further submission is that there was adequate security arrangement during the poll at all booths and election observer was there to supervise the election. Regarding declaration of some booths to be supersensitive has got nothing to do with the respondent. According to him, he was not concerned with deployment of military or para-military forces in the supersensitive booths and if that has not been done it cannot be in any way said that the same was within the knowledge of the respondent or at his influence. In that way, if is emphatically denied that the respondent was in any way connected with the alleged corrupt practice as has been stated. The specific incident as stated in para- 20 of the election petition regarding booth No. 23 has been emphatically denied line by line. In that way, if is emphatically denied that the respondent was in any way connected with the alleged corrupt practice as has been stated. The specific incident as stated in para- 20 of the election petition regarding booth No. 23 has been emphatically denied line by line. Similarly, the statement made in para-21 of the election petition with regard to booth No. 52 has also been denied categorically. Similar is the case of para-22 of the election petition. Even if there is any sort of irregularity during the poll it has been submitted that the respondent is in no way connected with anything and in that way, charge of corrupt practice brought against the respondent has been totally denied rather it has been stated that in respect of booth Nos. 53 and 54, the election agent of the respondent at the instance of Mr. S. Alam had filed the petition to the returning officer stating the facts of booth looting etc. At the instance of the petitioner and on the basis of that petition and also the petition of the Presiding Officer of booth No. 53 in collusion with the petitioner had submitted bringing allegation etc. regarding booth looting. It has further been brought regarding the discrepancies in respect of the Annexures filed alongwith the election petition. The other allegations made in the election petition have been denied categorically. Thus, the written statement filed by the respondent is only dented to the allegation brought. Practically, when the allegations of corrupt practice has been brought, the respondent had no other alternative but to deny the same. Put the whole burden on the person to prove who has brought those allegations as such allegations are of quasi criminal laches. 7. On the basis of the pleading of the parties and drafts issued being filed following issues were framed by the Court vide order dated 30-11-2000 in the following manner:- - (i) Whether the election petition is maintainable in its present form? (ii) Whether the election petition suffers from non-compliance of the mandatory provisions and also being bereft of material facts and particulars as contemplated u/s. 87 of the Act and under Order VI, Rule 16 of the Code of Civil Procedure? (iii) Whether the corrupt practice as alleged in capturing booths and undue influence as defined under Secs. (ii) Whether the election petition suffers from non-compliance of the mandatory provisions and also being bereft of material facts and particulars as contemplated u/s. 87 of the Act and under Order VI, Rule 16 of the Code of Civil Procedure? (iii) Whether the corrupt practice as alleged in capturing booths and undue influence as defined under Secs. 123 (2) and 123 (8) of the Representation of people Act has vitiated the election of the sole respondent? (iv) To what relief, if any, can be granted in favour of the election petitioner. 8. In support of the respective cases of the parties, election petitioner has adduced evidence of 12 witnesses including the election petition himself as P.W. 9 in all and respondent has examined 10 witnesses including respondent himself as D.W. 10. From the side of the election petitioner the following documents have been exhibited, namely, Ext. 1 is an application to the Chief Election Commission of India by petitioner dated 14-1-2000. Ext. 2 is an application to the Chief Election Commission by the petitioner dated 13-2-2000. Ext. 3 is also an application to the Chief Election Commission dated 12-2-2000. Ext. 4 is an application to the Chief Election Commission dated 25-2-2000. Ext. 5 is another application to Chief Election Commission dated 25-2-2000. Ext. 6 is an application by Dr. I.D. Singh to the Chief Election Commission dated 8-2-2000. Ext. 7 is Presiding Officers diary. One document has been marked as X for identification which was filed with the election petition itself. 9. For and on behalf of the respondent no documents have been exhibited but as I have mentioned for denial of the election petitioners case in total ten witnesses have been examined. Let a short iteration be made about the points on which deposition has been given by the witnesses of the parties. P.W. 1 Ram Bilas Yadav was an independent Candidate in the fray although he was styled as a dummy candidature from the side of the respect. He deposed that he himself was the voter of booth No. 52 situated at primary School, Nima and while he was in the queue then the respondent Dr. Mahabir Prasad alongwith his musclemen arrived there and created a situation of terror and most of the persons were armed with deadly weapons. He deposed that he himself was the voter of booth No. 52 situated at primary School, Nima and while he was in the queue then the respondent Dr. Mahabir Prasad alongwith his musclemen arrived there and created a situation of terror and most of the persons were armed with deadly weapons. It has further been stated that some of those had snatched away ballots from the presiding officer and then put their signature by thumb impression in the Counter foil and then by marking seal on those ballots put those ballots in the box. His further contention is that during that course of scaring away the voters one Deo Narayan Yadav amongst the musclemen of the respondent No. 1 had taken away his agents wrist watch. According to him he submitted a case before the Officer Incharge of the Police Station but the Officer Incharge being a relation of the musclemen of the respondent No. 1 did not convert his report as a FIR and then he reported the matter through fax to the State Election Officer, District Magistrate, and Superintendent of Police. But it should be mentioned here that no such paper has been exhibited in the case. This witness has been cross-examined at length and he has admitted that no repelling was made in respect of booth No. 52 although on such ground of booth capturing etc. repelling was made in several other booths. He has also admitted before the Court that he had no knowledge whether there was any adverse report regarding booth capturing etc., in respect of booth No. 52. PW-2 Upendra Yadav is one of the voters who had to cast his vote at booth No. 52. According to him also he could not cast his vote as there was booth capturing but he admitted that he had never reported the matter to anybody rather after several days of the publication of the result he reported the matter to the election petitioner. This witness has also been cross examined at length and his evidence does not inspire much confidence regarding the incident of booth capturing. Similarly the evidence of PW-3 Bechan Prasad Yadav was also a voter of booth No. 52 and he deposed in the same line as that of PW-2 and his evidence also do not inspire much confidence. PW-4 Jagdish Ram is also a voter of booth No. 52. Similarly the evidence of PW-3 Bechan Prasad Yadav was also a voter of booth No. 52 and he deposed in the same line as that of PW-2 and his evidence also do not inspire much confidence. PW-4 Jagdish Ram is also a voter of booth No. 52. He had given a parrot like evidence as that of PW-2 and 3. He said that he never reported this incident of booth capturing to anybody except that to the election petitioner that too after ten days of the publication of the result. PW-5 Rama Kant Yadav has also deposed in the same line as that of PW 2 to 4. He is also a voter of booth No. 52. According to him he did not report to anybody except the election petitioner that too after, ten days of the publication of the result. PW-6 Maheshwar Pd. Yadav is the polling agent According to him polling started from 7.15 A.M. and first 2-3 hours polling was peaceful and then several goons came there and after scaring the voters started sealing the ballots and dropped in the ballot box. According to him the capturers of the booth included the polling agent of the respondent Mahabir Prasad also. Then he said that those persons who had captured were the men of respondent Mahabir Prasad. This witness has been cross examined at length. According to him the contest between Dr. Mahabir Prasad and the petitioner were going on for several assembly polls and sometime the petitioner had won and sometime the respondent. So both the petitioner and the respondents were old contestants. This witness has not stated that Dr. Mahabir Prasad was also present at the time of capturing of booth No. 5. This witness has also stated that he had not reported the matter to anybody except that to the election petitioner. P. W. 7 Sudhir Kumar is the voter of booth No. 23. According to him several persons from his village came there when he was in the queue at 9.30 A.M. and scared the voters by threatening them and then some of them entered inside the booth and started giving bogus votes and those persons i.e. the capturers of booth remained inside the booth for 2 and half hours. According to him that such capturers were the persons of Mr. Mahabir Pd. According to him that such capturers were the persons of Mr. Mahabir Pd. and such information could be gathered by him from rumours being spread in the village. P.W. 8 Jai Kant Yadav is the polling agent of the election petitioner at booth No. 52. He deposed in the same line as that of the voters of that booth as mentioned earlier. He did not inform this incident before anybody in writing but he informed the same to his candidate that too on a later date. PW-9 Izhar Ahmad is the election petitioner. He has supported the contents of the election petition and exhibited various applications given by him to the election commissioner which were marked exhibit as already mentioned above. He had no personal knowledge about the booth capturing in those booths as claimed by him but according to him on the ground of booth capturing repelling has been made in several booths but admittedly the booths wherein booth capturing has been alleged had not gone for repoll. It appears that the election petitioner has lost election by a good margin of votes. On previous occasion also he had contested the election with Mahabir Prasad as an independent candidate and on being lost he had filed election petition which was fought upto the Hon ble Supreme Court and he lost. P.W. 10 Chandra Kishore Jha is also a candidate who had fought the election as a Congress (I). Before election he gave application before election Commission of India wherein he mentioned about several booths to be super sensitive booths. The original application was not there and the photo copy which has been filed alongwith the election petition has been marked as X for identification. He has heard also booth capturing and has got no personal knowledge. PW-11 Dr. I.D. Singh is the election agent of Izhar Ahmad and he had supported the election petition. He has also not an eye-witness but a hear say one. PW. 12 Nazrul Hoda was a school teacher and was Presiding Officer of booth No. 53 where there was booth capturing and he gave a report to that effect and on the basis of that repelling was made in that booth. Although in the evidence he has stated that Mahabir Prasad was present at the time of booth capturing but such facts are totally absent in his diary which has been marked as Exhibit-7. Although in the evidence he has stated that Mahabir Prasad was present at the time of booth capturing but such facts are totally absent in his diary which has been marked as Exhibit-7. He tried to give an explanation to the effect that he had forgotten the name of Mahabir Prasad at that time time. These are the evidence adduced from the side of the election petitioner. 10. For and on behalf of the respondent, I have already stated, ten witnesses have been examined including respondent No. 1 as D.W. 10. The evidence of the defence witnesses are mostly on the denial form regarding all the allegations that were made by the election petitioner and his witnesses D.W. 1 Kameshwar Yadav, D.W. 2 Bidyanand Yadav were the voters of booth No. 23. According to them, Voting was totally peaceful. The names of the goons as disclosed from the side of the election petitioner were known to those witnesses but according to them none of them were present at the booth at any point of time. D.W. 3 Bipin Pandit was the polling agent of Chandreshwar Singh a CPI candidate at booth No. 23. According to him, polling was peaceful. There was no booth capturing. D.W. 4 Raudi Yadav is also a voter of booth No. 23. He had cast his vote and there was no booth capturing according to him. D.W. 5 Naresh Yadav, D.W. 6 Jibachch Yadav and DW 7 Jamidar Yadav and DW 8 Agmlal Yadav are all voters of booth No. 52 and according to them, voting was peaceful in that booth and there was no difficulty in casting their votes in that booth. The persons or goons who have been named by the election petitioner and his witnesses to have captured the booths are known to these witnesses as coming from the same village but according to them they were never present in the booth of nearby that area. D.W, 9R.B. Mahto was the District Magistrate of Darbhanga, in whose tenure Ghanshyampur Legislative Assembly Election was held. He was also the District Election Officer. He said that on allegations being made, according to him, some booths were categorised as sensitive booths in that constituency and for those sensitive and super-sensitive booths personnel of the armed forces were deployed on the date of poll. He was also the District Election Officer. He said that on allegations being made, according to him, some booths were categorised as sensitive booths in that constituency and for those sensitive and super-sensitive booths personnel of the armed forces were deployed on the date of poll. According to him, in general polling was peaceful but in respect of some booths trouble was found and, as such, repelling was held. These witness has been cross-examined at length but nothing could be brought on cross-examination in favour of the election petitioner. D.W. 10 is the respondent himself. He has denied all the allegations brought against him and his Kins men and, according to him, all allegations made are concocted, manufactured and table work for the purpose of filing of this election petition. Finding & Reasons thereof 11. Before entering into issuewise decisions and findings thereof general principle should be reiterated for the purpose of adjudication of the present election petition. The allegations have been made of corrupt practice as contemplated u/s. 123 of the Representation of People Act (henceforth shall be said as Act). There are various provisions under the said sections as to which acts should be construed as corrupt practice. Previously booth capturing by a candidate has not been included but by amendment of 1989 the same has been include as 123 (2) (8) of the said Act. 123 (2) as defined undue influence which is in the following form:- - "(2) Undue influence, that is to say any direct or indirect interference or attempt to interfere on the part of the candidates or his agent, or any other person (with consent of the candidate or the election agent which the free exercise of any electoral roll) and under this definition of undue influence booth capturing by a candidate or his agent or other persons has been included by amendment as stated in sub-paragraph 8." An explanation has also been inserted to the effect that the expression agent includes election agent, polling agent and any person who is held to have acted as an and in connection with the election with the consent of the candidate. 12. 12. It has fairly been consented by learned counsel for both the parties that is such allegations are brought for corrupt practice u/s. 123 of the Act onus lies on the person bringing allegations to prove the same to the hilt in the proceeding because such allegations if brought becomes a quasi criminal proceeding considering the affect of proof of corrupt practice. The punishment is imposed by the Act itself to the affect that if such corrupt practice is proved the person concerned is debarred for several years in contesting the election. In that way the allegation requires to be proved beyond doubt and the Courts are also to be cautious considering the affect of proof of corrupt practice in finding stringency of such corrupt practice. There might have been repelling on allegations of booth capturing in the present election in respect of several booths, namely, booth Nos. 34, 53, 54, 114, 224. A question has been raised whether booth capturing in respect of the several booths wherein repelling has been made would make only a prima facie proof of booth capturing held in the election concerned and considering the open and vast definition of election the same would make the whole election being void. This matter shall be considered at the relevant time but the fact remains that on other grounds when election has been challenged by a returning candidate materials facts are required to be proved but here for corrupt practice material particulars are to be proved and such proof should be almost like that of the criminal case. With this principle in mind the whole election petition shall have to be disposed of. Issue Nos. 1 and 2 13. Both these issues are inter related and, as such, they are taken up together for the purpose of decision, if the election petition suffers from non-compliance of mandatory provisions of the Act and Rules thereof then the petition can be thrown out on the ground of maintainability alone. These issues have not been much pressed from the side of the respondent but a contention has been made that Court must see whether provisions of sec. 83 of the Act have been properly complied with or not if not complied then the election petition is liable to be held non-maintainable as contemplated u/s. 87 of the Act read with Order VI, Rule 16 of the Civil Procedure Code. 83 of the Act have been properly complied with or not if not complied then the election petition is liable to be held non-maintainable as contemplated u/s. 87 of the Act read with Order VI, Rule 16 of the Civil Procedure Code. There are various judgments wherein Apex Court decided that if for allegation of corrupt practice material particulars are not being given in the election petition itself as provided u/s. 83 (1) (b) of the Act then the whole petition is bereft of adjudication. Sec. 83 (1) (b) reads as follows:- - "(1) An election petition--...... (b) shall be set forth full particulars of any corrupt practice the petitioners 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"; It has further been provided that where the petitioner a lieges any corrupt practice, the petition are being accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. In the present election petition the corrupt practice alleged is of undue influence and of booth capturing. It has been alleged that in the presence of the respondent himself the musctemen & Kinsmen have captured several booths, namely, booth Nos. 53, 23 and booth Nos. 115 to 118. The particulars of such booth capturing have been described in details in paragraph 20, 21 and 22 of the election petition. Therein it has been stated the time when the respondent alongwith his kinsmen and musclemen, names of whom have been categorically stated, had come to the booth in question and then they scared the real voters who were standing in the queue by show of threat of the arms they were carrying and then they entered inside the booth and snatched away the ballot papers from the Presiding Officer and then started giving bogus votes by signing or putting illegal signatures and thumb impression on the counter foil of the ballots and then put those bogus votes inside the box. In schedules and annexures annexed with the election petition relating to the particular paragraphs as mentioned above have also been submitted to show the names of the persons from whom such knowledge have been gathered and the persons who were real voters and being affected in not casting their votes and in support of those allegations proper affidavits have also been filed as required u/s. 83 of the Act as mentioned above. In that way it cannot be said that material particulars are missing in the present election petition. In this respect a judgment of the Apex Court in the case of Raj Narain V/s. Mrs. Indira Gandhi, as reported in 1972 S.C. 1302 may be referred to wherein it has been held by the Apex Court that even if some material particulars are being not included within the election petition itself the same would not make the whole petition non-maintainable because it is only a technicality which requires u/s. 83. It has been held further that justice should not be frustrated on technicality alone and action of law should not be equated with the game of chess. In present case I do not find and it could not be shown from the side of the respondent that in particulars of vital importance had not been included in the election petition. It is other thing whether the annexures and schedule annexed to the election petition in support of the allegations brought have not been proved during the course of trial but regarding the maintainability of the election petition, if material particularize are included within the election petition then it cannot be said that the election petition is bereft of material particulars as required under Sec. 83 (1) (b) of the Act and, as such, it must be held that the election petition is maintainable. Thus both these issues are decided in the affirmative and in favour of the election petitioner. Issue No. 3 14. This issue is the vital issue result of which would decide the fate of the election petition. At the very first instance, it must be mentioned that evidence, There regarding the corrupt practice only in respect of booth No. 23 (Paragraph 20 of the election petition) and booth No. 52 (paragraph 21 of the election petition). Issue No. 3 14. This issue is the vital issue result of which would decide the fate of the election petition. At the very first instance, it must be mentioned that evidence, There regarding the corrupt practice only in respect of booth No. 23 (Paragraph 20 of the election petition) and booth No. 52 (paragraph 21 of the election petition). Regarding the same allegation of booth capturing has been mentioned in the election petition at paragraph-23, regarding other booths, namely, booth Nos. 115 and 118, details of which were given in Schedule C of the election petition but no evidence has been brought. So it must be construed that the election petitioner has based his allegations only in respect of booth No. 23 and booth No. 52, but then it has been submitted from the side of the election petitioner that the witnesses have been brought to adduce evidence in respect of those booths also but as the allegation of booth capturing could be proved in respect of booth No. 52 and booth 23, only to avoid evidence being voluminous they have not been examined in the case. Whatever might be in the mind of the election petitioner or his counsel but the fact remains that evidence has been brought in respect of booth No. 23 and booth No. 52 alone and as it has been held by the Apex Court in various judgments including that of 1972 Vol. 40 E.L.R. 391 (M. Chenna Reddy V/s. V. Ramachandra Rao and Anr.), that charge or allegation of corrupt practice must pertain all the nature of criminal trial and there is no scope of finding of balance of probabilities and must be on direct and cogent evidence to support it. In that way, any analogy in respect of corrupt practice in other booths cannot be construed to be proof of corrupt practice. In the present election petition, it should be mentioned that on the basis of such analogy it was alleged from the side of the election petitioner that in respect of booth Nos. 53 and 54 there were allegations of booth capturing and on such allegations repelling was made in respect of booth Nos. 53 and 54 and some other booths, namely, 34, 114 and 224. 53 and 54 there were allegations of booth capturing and on such allegations repelling was made in respect of booth Nos. 53 and 54 and some other booths, namely, 34, 114 and 224. In this respect evidence of the sole witness has been recorded from the side of the election petitioner, namely, P.W. 12 Nasirul Hoda who was the Presiding Officer at booth No. 53. He has proved Ext. 7 his diary as Presiding Officer with his signature. In oral evidence he has stated that respondent Mahabir Pd. was present during the course of booth capturing and at his instance booth capturing was made and, according to him, he had reported so before the Authority of Electioneering, Superintendent of Police and also Officer-in-Charge but no such report could be proved from the side of the witness. Moreover, very peculiarly in his diary no where he has mentioned the name of Dr. Mahavir Prasad amongst the booth captures and by way of explanation he said that at the relevant time he had forgotten the name of the respondent. On the other hand, there is evidence of the District Magistrate who was the District Election Officer also from the side of the respondent Mr. R.B. Mahto as D.W. 9 who had not supported the plea of booth capturing rather he had stated that as information was received of some trouble, in some of the booths repolling was ordered. Even if such trouble has been interpreted as booth capturing then also until and unless it could be proved that it was due to the influence or instance or of direct involvement of the respondent the booth capturing was made then corrupt practice against him cannot be said to be proved by any stretch of imagination. Then again no analogy can be brought regarding booth capturing in booth Nos. 52 and 23 for which the election petitioner has brought evidence and allegations too, unless it could be proved that booth capturing were there in those two booths also. Moreover, analogy cannot be on one side alone. Repelling in some booths can bring the following inferences:- - (1) That booth capturing was there for which repelling was made in some of the booths as already mentioned above. (2) That in other booths wherein no repelling was ordered infers of peaceful polling was done in those booths. Moreover, analogy cannot be on one side alone. Repelling in some booths can bring the following inferences:- - (1) That booth capturing was there for which repelling was made in some of the booths as already mentioned above. (2) That in other booths wherein no repelling was ordered infers of peaceful polling was done in those booths. The second inference shall be applicable in the present case as the giving benefit of doubt in favour of respondent as allegations are of criminal nature. In that case, in respect of repelling of those booths another legal theory has been put up by Mr. S.N.P. Sharma learned senior counsel for the election petitioner that when there was repelling in respect of some of the booths on allegations of booth capturing then the whole of the election is being vitiated by construing the wide meaning of election as defined in Constitution of India. In this respect he has referred to AIR 1952 (SC) 64 (N.P. Punnuswami V/s. Returning Officer). I have gone through the whole ruling wherein the word election as has been mentioned in the Constitution of India had been considered in the light of the different provisions of Representation of People Act. That matter is related to the rejection of nomination paper. It was held that although election means polling of votes but the election process starts from the date of notification and acceptance or rejection of nomination papers are also part of the election. That ruling has got no bearing in the present case. I have already made it clear that there is no scope of any analogy being brought in respect of repolling in other booths to the allegations of booth capturing being made in the election petition and attempted to be proved in respect of two booths only i.e. booth Nos. 23 and 52. Thus, I am constrained to hold that until and unless the election petitioner is able to prove booth capturing in booth No. 23 and booth No. 52 as alleged by him by cogent and direct evidence, the election petitioner is not entitled to get any relief in the present election petition. Now let me take up the allegations of booth capturing at the instance/involvement of the respondent in respect of boothwise i.e. booth No. 23 and booth No. 52. 14 (a) Booth No. 23. Now let me take up the allegations of booth capturing at the instance/involvement of the respondent in respect of boothwise i.e. booth No. 23 and booth No. 52. 14 (a) Booth No. 23. (i) The allegation of booth capturing in respect of this booth has been described in para 20 of the election petition. Therein it has been stated specifically that such booth capturing was made with the consent and instance of the sole respondent through anti-social elements who scared the voters, snatched the ballot papers from the Presiding Officer/Polling Officer and then put bogus votes. Annexure-5 is there, which is a complaint by the Polling agent of the election petitioner Sri Maheshwar Pd. Yadav and has been enclosed in support of the allegations but this Annexure-5 has not been proved although this Maheshewar Pd. Yadav has been examined as P.W. 6 in this case. In Schedule-A of the election petition, allegations of particulars of corrupt practice in respect of both the booths has been mentioned with the names of voters, on whom corrupt practices had been committed making them ouster from the polling of votes. Nine persons have been mentioned in that schedule. Out of whom only Maheshwar Pd. Yadav was examined as P.W. 6. In his examination-in chief he has supported the allegations and he had stated that when the booth was captured by the anti-social elements he was very much present and although he made complaints before the police and also before the Presiding Officer but nobody had taken his complaint. He had to admit in his cross-examination that after such instance of non-maintaining his F.I.R. he did not move the higher officials. That he had complained through Annexure-5, as I have already stated, had not been proved. Moreover, in his evidence there is not an iota of allegation that at the time of alleged booth capturing the respondent was present rather. For the first time although it was not mentioned in the election petition itself, it has been stated that the polling agent of the respondent had indulged in such booth capturing. A new fact has been brought to that effect. (ii) Not a single voter of that booth, whose names appear in the schedule of the election petition, have been examined to support the allegation of booth capturing. A new fact has been brought to that effect. (ii) Not a single voter of that booth, whose names appear in the schedule of the election petition, have been examined to support the allegation of booth capturing. This booth capturing has not been supported by any other witness except the election petitioner and his election agent who are the only witnesses of hearsay. On the other hand, from the side of the respondent D.W. 1 Kameshwar Yadav, D.W. 2 Bidyanand Yadav, D.W. 4 Ruddy Yadav, who are the voters of booth No. 23, have been examined and according to them, they could cast their votes without any interference by anybody and polling was peaceful. They have categorically stated that the persons who were named as antisocial elements were known to them sine before as they are of the same village or of the contiguous village but none of those persons were seen either at the booth or in and around the booth. Thus, on scrutiny of the evidence of both sides it could be found that none of the voters of booth No. 23 have supported the allegations regarding booth capturing except the polling agent of the election petitioner who again has not said anything regarding involvement of the respondent in such booth capturing. He has introduced a new fact of involvement of the polling agent of the respondent which was not the case of the election petitioner. On the other hand, three voters of that booth have been examined on defence and according to them, there was no booth capturing. Another witness P.W. 7 has been examined regarding this. His evidence naturally differs from that of P.W. 6. In that way, there is utter failure on the part of the election petitioner to prove that there was booth capturing in respect of this booth. 14. (b) Booth No: 52 : (i) Regarding booth capturing in this booth allegations have been made of the same similar character as that of booth No. 23 and that has been stated in paragraph 21 of the election petition and it has been stated that at 9 A.M. the respondent with his musclemen and kinsmen had come to the booth and some of his goons were armed with deadly weapons. By showing of the weapons they scared the voters who were standing in the queue and then real voters had to go away being scared. The booth capturists then entered into the booth, started giving false and vogus votes and after remaining for two and half hours left the booth. The modus operandi of booth capturing had been the same as that of booth No. 23 as alleged and very peculiarly the time has been mentioned as 9 A.M. regarding the booth capturing of both the booths and it was stated that respondent was present and in his presence booth capturing was made. At the very first instance, if the respondent was present there and at his instance booth capturing was made then he must have remained in this booth upto 11-12 A.M. In that way, he cannot be present both in Booth Nos. 23 and 53 at 9 A.M. and for this reason it has been urged from the side of the respondent that the whole story is a concocted on and table work only for the purpose of filing this election petition. Another significant matter has been pointed out by the Learned counsel for the respondent that none of the witnesses who had been examined on behalf of the election petitioner had reported the incident/factum of booth capturing immediately after the incident. Rather, all the witnesses, namely, P.Ws. 1 to 5 and P.W. 8 have stated that the incident of booth capturing had been informed to the election petitioner about 8-10 days after the result of the election was declared when the Election petitioner had visited their village. The importance and significance of the incident definitely looses its importance when the matter is being reported after several days of the incident. In criminal cases such delay is always construed to be a fatal one suggesting that the whole story is concocted one. Much stress has been given from the side of the election petitioner on evidence of P.W. 1 Ram Bilash Prasad, who happened to be an Independent candidate in the fray. This candidate had received only 200 votes in total and, although, he claimed to be the voter of Booth No. 52 but it appears that in that booth his securing of vote is nil and on this belief it has been urged that this factum proves that there must have been booth capturing. This candidate had received only 200 votes in total and, although, he claimed to be the voter of Booth No. 52 but it appears that in that booth his securing of vote is nil and on this belief it has been urged that this factum proves that there must have been booth capturing. Otherwise, atleast the candidate could have cast his vote in his favour in that booth. P.W. 1 could not prove that he was a voter of Booth No. 52 by any cogent evidence except bold statement in evidence. Moreover, this witnesses has been termed as a dummy candidate of the Election Petitioner. According to him, he had sent the message to the Election Commission of India and Annexure is also to that effect but the original has not been proved in the case which creates a doubt about this factum. He has also stated that he had informed about the incident to the Election petitioner after the result was published. Lastly, after the cross-examination was over on being questioned by the Court he replied that he had no knowledge whether any information was sent to the Election Commission of India regarding booth capturing of Booth No. 52. He had also stated that at the intervention of the Election Commission of India repolling was done in Booth No.53 and in respect of booth No. 52 no such order of repolling was passed. This evidence gives a jolt blow to the case of the Election Petitioner himself. (ii) Now, other witnesses examined in respect of booth No. 52 for and on behalf of the Election petitioner are P.Ws. 2 to 5 and P.W. 8. All have given evidence in parrot like manner regarding the presence of the respondent at the time of booth capturing by his kinsmen and goons. In this respect it should be mentioned that in Annexure-7 although, the same has not been exhibited but the same shows that there is no mention of Booth Nos. 52 or 23 wherefrom the allegation of booth capturing came. P.Ws. 2 to 5 are the voters of Booth No. 52 and P.W. 8 Jai Kant Yadav happened to be the Polling Agent of the Election Petitioner. Being polling Agent P.W. 8 had definitely been duty bound to inform about such booth capturing. 52 or 23 wherefrom the allegation of booth capturing came. P.Ws. 2 to 5 are the voters of Booth No. 52 and P.W. 8 Jai Kant Yadav happened to be the Polling Agent of the Election Petitioner. Being polling Agent P.W. 8 had definitely been duty bound to inform about such booth capturing. But he has categorically admitted in his cross-examination that he had never made any complaint in writing before any Officer or anybody. He also admitted that he has not informed about the incident even to the election Petitioner, though, he was a Polling Agent. But he had informed on a later date after the result was published. The same is the evidence of so-called voters also. (iii) I have already mentioned that in the oral evidence part of the witnesses of the petitioner read in between the lines, they did not inspire confidence. Moreover, even if it is taken that some of the voters have deposed in favour of the Election Petitioner but then the same position remains in respect of D. Ws. 5, 6 and 7 who are also voters of that booth who had deposed in favour of the respondent stating that the voting was peaceful and no trouble was there. They have also stated that they knew the persons who have been named by the Election Petitioner to have captured the booths but, according to them, they were neither present nor indulged in any action in the booth nor they were seen near or around the booth. So, even if the inspiring of confidence is not being construed then also there remains the balance evidence of both the parties in respect of so-called booth capturing. I have already stated that it being a quasi criminal proceeding, duty is cast upon the Election Petitioner to prove the allegation of booth capturing by cogent and direct evidence. There is no scope of probabilities. For the purpose of the probability evidence of P. W. 12 has been brought as I have already mentioned that there was booth capturing in Booth No. 53 which has come on repoll. There also it has been stated that respondent was physically present and was doing the booth capturing alongwith his Goons and kinsmen. But very peculiarly in the diary of P.W. 12 who happened to be the Presiding Officer, there was no mention about the name of the respondent. There also it has been stated that respondent was physically present and was doing the booth capturing alongwith his Goons and kinsmen. But very peculiarly in the diary of P.W. 12 who happened to be the Presiding Officer, there was no mention about the name of the respondent. Although, he said that he submitted the F.I.R. etc. before the Police but in his cross-examination he said that he was made to write, according to the version of the police as he was in duress. All this evidence of P.W. 12 makes him dis-believable. One thing is very significant and peculiar to note that every witnesses came regarding three booths, namely, Booth Nos. 23, 52 and 53 that Respondent Dr. Mahabir Prasad was physically present. How a person can be physically present in all the three booths simultaneously and at the same time has not been explained in any way whatsoever from the side of the Election Petitioner. So, on consideration of the evidence of both the parties with regard to booth capturing also I do not find that the Election Petitioner could be able to prove the allegation of booth capturing in respect of Booth No. 52 also. (iv) I have already mentioned that there is no scope for analogy or probability when allegation of corrupt practice and booth capturing is there which could not be proved against the respondent from the side of the Election Petitioner by any cogent evidence. So, if there was any booth capturing as alleged when the repoll was made then also the same cannot be based on analogy or probability of holding of booth capturing in respect of the booths where direct allegation has been made. (v) In that way, the Election petitioner has miserably failed to prove the allegation of booth capturing as alleged from his side. This issue is decided in negative and against the Election petitioner. 15. Item No. 4:- -In view of the decision in item No. 3 the Election petitioner is not entitled to any relief whatsoever in this Election petition and in the result it is ORDERED that the Election petition is dismissed with a cost of Rs. 1000 only.