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2005 DIGILAW 584 (GAU)

Arun Kumar Sarma v. Ranee Narah

2005-08-10

AMITAVA ROY

body2005
JUDGMENT Amitava Roy, J. 1. By this application under Order 6 Rule 16 of the Code of Civil Procedure read with Section 151 of the Code and Sections 83 and 87 of the Representation of the Peoples Act, 1951 (hereinafter referred to as the 'Act'), the Respondent No. 1/applicant seeks to strike out the contents of various paragraphs of the Election Petition No. 2/2004. 2. I have heard Mr. K. Agarwal, learned Counsel for the applicant and Mr. AB Choudhury, Senior Advocate assisted by Mr. J. Abedin, Advocate for the Election Petitioner/Opposite Party. 3. A brief factual background of the present list is necessary, Pursuant to the notification issued by the Election Commission of India for constituting the 14th Lok Sabha of the country, election amongst Ors. to No. 14 Lakhimpur Parliamentary Constituency in the State of Assam was held on 26.04.2004 and the results were declared on 13.05.2004. The Election Petitioner and the Respondent Nos. 1 to 10 in the Election petition contested the election from the said Constituency. The Election Petitioner was set up as a candidate of the India National Congress, while the Respondent No. 1/applicant entered the fray as a candidate of the Assam Gana Parishad The Election Petitioner polled 2, 72, 717 votes in the face of 3,00,865 votes polled by the Respondent No. 1/applicant. Accordingly, the Respondent No. 1/applicant was declared elected from the aforementioned constituency. 4. The election of the Respondent No. 1/applicant has been questioned by the Election Petitioner on the ground of corrupt practice and contravention of the Election Commission's guidelines for the Presenting Officers and the Returning Officers, thus, materially affecting the results of the election so far as it concerned the returned candidate. Corrupt practice of bribery, assistance from the persons in government service and booth capturing have been alleged. The Respondent No. 1/applicant, on being served with the J notice of the election proceeding, has filed the instant application seeking to strike out the contents of paragraphs 6 to 25 and 28 of the Election petition contending inter alia that same do not make out any ground under Section 100 of the Act besides being unnecessary scandalous, frivolous and vexatious intending to delay the proceedings. 5. 5. Before taking up the paragraphs referred to above to ascertain if the same can survive the scrutiny based on the rival contentions of the parties, it would be apt to outline the salient features of the competing contentions. 6. Mr. Agarwal has assiduously argued that the contents of the paragraphs in question do not conform to the directives contained in Section 83 of the Act and fail to disclose any cause of action for the Election petition. According to him, the paragraphs lack in concise statements of material facts and that particulars of the alleged corrupt practice have not been set out therein. He has maintained that the statements made in the said paragraphs have not been verified as required and that the allegations of corrupt practices are not adequately supported by the affidavit annexed to the schedule and/or annexed to the Election petition. He has contended that the statements made in the aforementioned paragraphs even if accepted on their face value, do not demonstrate any contravention or non compliance with the provisions of the Constitution or the Act or any Rules or Orders made thereunder. He has asserted that the statements in the Election petition do not indicate in any manner that the results of the election so far as it concerns the returned candidate has been materially affected by the activities alleged. 7. Per contra, Mr. Choudhury has argued that the elementary rule of pleadings being that the same has to be read as a whole and not in isolation, the Election petition in the present form fully satisfies the requirements of Section 83 of the Act. As the paragraphs involved contain the essential material facts, delineating the corrupt practices and the transgression rendering the election of the returned candidate illegal and void, this Court at this stage of the proceeding would not accede to the prayer for striking out the contents of the said paragraphs without affording an opportunity to the Election Petitioner to prove the allegations levelled. The basic and primary facts having been furnished in the Election petition in support of the assertions of corrupt practice and other violation levelled against the returned candidate, the contention regarding non compliance of the mandate of Section 83 of the Act is untenable, he argued. The basic and primary facts having been furnished in the Election petition in support of the assertions of corrupt practice and other violation levelled against the returned candidate, the contention regarding non compliance of the mandate of Section 83 of the Act is untenable, he argued. According to him, primary facts bearing on the corrupt practices being on records, marginal omissions in furnishing the full particulars thereof by itself would not render the Election petition rejectable. The particulars of the corrupt practices alleged having been brought to the extent possible. Mr. Choudhury argued that the paragraphs under challenge ought to be allowed to go for trial in the interest of justice. Refuting the contention relating to the verification, affidavit and the schedule annexed to the Election petition to the contrary, learned Senior Counsel submitted that those were in terms of the requirements of Section 83 of the Act and the Conduct of Election Rules, 1961, (hereinafter referred to as the 'Rules'). In the alternative, he urged that assuming without admitting that the verification, affidavit and the schedule/annexures were lacking in some respects, resultant defects were curable for which the contents of the corresponding paragraphs are not liable to be struck out. 8. A host of authorities has been cited by both sides at the Bar on the relevant legal principles to drive home their points. If would be expedient therefore, to be equipped with the presidential exposition of law on the subject before adverting to the concerned paragraphs. 9. That an Election petition is not an action at Common Law, nor in equity, but is a statutory proceeding to which statute made rules apply, was held in unequivocal terms in Joyti Basu and Ors. Appellants v. Debi Ghosal and Ors. Respondents AIR 1982 SC 983 . It was ruled that the jurisdiction exercisable under the Act was a special one to be conducted in accordance therewith and that the concepts familiar to common law and equity would remain strangers unless statutorily embodied. It was emphasized that no election under the Act could be questioned except in the manner provided by it and therefore, for the trial of election disputes, the Court is put in a straight jacket. Adherence to the prescriptions of Section 83 of the Act is thus imperative. 10. It was emphasized that no election under the Act could be questioned except in the manner provided by it and therefore, for the trial of election disputes, the Court is put in a straight jacket. Adherence to the prescriptions of Section 83 of the Act is thus imperative. 10. While dealing with 'material facts', the Apex Court held in Azhar Hussain, Appellant v. Rajiv Gandhi, Respondent AIR 1986 SC 1253, that those are facts which would give the Petitioner the relief asked for. The test, is observed, is whether the Court could give direct verdict in favour of the election Petitioner, in case, the returned candidate did not appear to oppose the election petition on the basis of the facts narrated therein. Referring to the corrupt practice of procuring assistance from the government servants as contemplated in Section 123(7) of the Act, their Lordships held that the facts essential to clothe the election petition with a cause of action must narrate the mode of assistance, measure of assistance and all various forms of facts pertaining to the assistance. Besides, the election petition should also contain a statement describing the manner in which the prospects of the election were furthered by such assistance. The exactness of the time of assistance, the manner of assistance and the persons from whom assistance was obtained or procured ought to be set out in the particulars. In the facts of the case, the Apex Court noticed that the statements relating to the above requirements were absent. With regard to the allegation against painting of slogans, making speeches or broadcast from vehicles by the workers and/or agents of the returned candidate, the Apex Court observed that there was a glaring omission to mention the names of the workers employed by the Respondent and/or agents or of the vehicles on which the slogans were said to have been pointed. It concluded that in absence of such material facts and essential particulars, no amount of evidence could cure the basic defect in the pleading, which as it stood was construed to be one not disclosing any cause of action. 11. Dwelling on the attributes of material facts, the Apex Court in Hari Shankar Jain, Appellant v. Sonia Gandhi, Respondent (2001) 8 SCC 233 held that these are which can be considered as materials supporting the allegations made and affording a basis therefore and constituting a cause of action. 11. Dwelling on the attributes of material facts, the Apex Court in Hari Shankar Jain, Appellant v. Sonia Gandhi, Respondent (2001) 8 SCC 233 held that these are which can be considered as materials supporting the allegations made and affording a basis therefore and constituting a cause of action. It recalled its earlier decisions in this regard and held that the material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. It observed that failure to plead material facts would be fatal to the election petition and no amendment of the pleadings to introduce the same is permissible. It reiterated that such basic defect in the pleadings could not be cured by any amount of evidence. 12. In L.R. Shivaramagowda and Ors. Appellants v. T.M. Chandrashekar (dead) by L.Rs. and Ors. Respondents (1999) 1 SCC 666 , the Apex Court held that failure to plead material facts in an election petition though fatal, absence of material particulars could be cured at a later stage by appropriate amendments. Referring to its earlier decision in Balwan Singh v. Lakshmi Narain AIR 1960 SC 770 and Samant N. Balkrishna v. George Fernandez (1969) 3 SCC 238 , that an election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out, it held that if the material facts of the corrupt practice were stated, more or better particulars of the charge could be given later. 13. While dealing with the distinction between 'material facts' and 'material particular', the Apex Court in Mahendra Pal Appellant v. Ram Dass Malanger and Ors. Respondents (2000) 1 SCC 261 observed that material facts are those essential to disclose a complete cause of action and have to be unfailingly pleaded and the material particulars are details of the case set up by the party necessary to amplify, refine or explain material facts. Whereas, failure to plead even a single material fact leads to an incomplete cause of action rendering the allegations to a relatable charge liable to be stuck off under Order 6 Rule 16 of the Code of Civil Procedure, the deficiency in material particulars can be refurbished even after expiry of the period of limitation if they are permitted in the discretion of the Court, it held. Whether, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case, it observed. 14. In Mohan Rawale, Petitioner v. Damodar Tatyaba and Ors. Respondents (1994) 2 SCC 392 , the Apex Court quoted with approval the following excerpt pertaining to pleadings and function of particulars; Pleadings do not only define the issues between the parties for the final decision of the Court at the trial, they manifest and exert their importance throughout the whole process of the litigation.... They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine the range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the Court can award.... [See: Jacob: "The Present importance of Pleadings" (1960) Current Legal Problems, at pp. 175-76] Halsbury refers to the function of particulars thus: The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. 15. Reiterating the same view, the Apex Court in the same vein, in H.D. Revanna, Appellant v. G. Puttaswamy Gowda and Ors. Respondents (1999) 2 SCC 217 , held that an election petition ought not to be dismissed in limine for want of particulars and if the Court was of the view that particulars were necessary, opportunity ought to be granted to the Petitioner to amend the petition and include the same. Respondents (1999) 2 SCC 217 , held that an election petition ought not to be dismissed in limine for want of particulars and if the Court was of the view that particulars were necessary, opportunity ought to be granted to the Petitioner to amend the petition and include the same. It recounted its decision in Raj Narain v. Indira Nehru Gandhi (1972) 3 SCC 850 that if a pleading on a reasonable construction could sustain the action, the Court should accept that construction and ought to be reluctant to frustrate an action on technical grounds. It held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. The charge of corrupt practice as alleged is a very serious charge and purity of election is for real essence of democracy, it ruled. 16. On pleadings, the Apex Court in Udhav Singh, Appellant v. Madhav Rao Scindia Respondent AIR 1976 SC 744 , also a case involving an election petition under the Act, held that the cardinal cannon of interpretation is that a pleading has to be read as a whole to ascertain its true import and it is impermissible to cull out a sentence or a passage and to read it out of the context in isolation. It was of the view that the intention of the party concerned is to be gathered primarily from the tenor and terms of his pleading taken as a whole. In the context of a charge of corrupt practice, their Lordships held that 'material facts' would mean all the basic facts constituting the ingredients of the particulars corrupt practice alleged, which the Petitioner is bound to substantiate for succeeding on that charge. Particulars on the other hand are necessary to amplify, refine and embellish the material facts already pleaded in the election petition furnishing finishing touches to the basic contours of a picture already drawn to make it full, more detailed and more informative. 17. In Dhartipakar Madan Lal Agarwal, Appellant v. Shri Rajiv Gandhi Respondent AIR 1987 SC 1577 , the Apex Court while dealing on the aspect of pleadings in an election petition as comprehended by Section 83 of the Act held that if an election petition fails to make out a charge under Section 100 of the Act, it must fail at the threshold. If the allegations relatable to corrupt practice are vague and the particulars of the charge are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. For this, the Court need not wait for the filing of the written statement and if on striking out the pleadings as prayed for, no triable issues remain to be considered, the election petition can be rejected, the underlying object being to avoid a fishing and roving inquiry. It was highlighted that it was therefore for the Court to scrutinize the pleadings relating to corrupt practice in a strict manner. 18. That the allegations pertaining to corrupt practice must be strongly and narrowly construed, was highlighted in Daulat Ram Chouhan, Appellant v. Anand Sharma Respondent AIR 1984 SC 621 observing that the pleaded facts must disclose the direct and detailed nature of corrupt practice as well as details of every important particular relating to time, place, names of persons, use of words and expressions etc. The facts pleaded must manifest that the corrupt practice alleged was indulged in by a candidate himself or his authorized election agent or any other person with his express and implied consent. The allegations must be clear and specific so that the inference of corrupt practice is irresistible without leaving the Court to draw an inference by adopting an involved process of reasoning. 19. Referring to the significance of the affidavit required to be filed in support of an allegation of corrupt practice, the Apex Court in Ravinder Singh, Appellant v. Janmeja Singh and Ors. Respondents (2000) 8 SCC 191 , held that the above requirement was to fix the election Petitioner with full responsibility in making such a charge and to prevent any fishing and roving inquiry thus saving the returned candidate from being taken by surprise. In absence of proper affidavit, it held, the allegation pertaining thereto could not be put to trial, the defect being of a fatal nature. 20. A slight digression in approach is noticeable in G. Mallikarjunappa and Anr. Appellants v. Shamanur Shivashankarappa and Ors. In absence of proper affidavit, it held, the allegation pertaining thereto could not be put to trial, the defect being of a fatal nature. 20. A slight digression in approach is noticeable in G. Mallikarjunappa and Anr. Appellants v. Shamanur Shivashankarappa and Ors. Respondents AIR 2001 SC 1829 , where their Lordships of the Apex Court held that an election petition is not liable to be dismissed in limine for alleged non compliance of the provisions of Section 83(1) & (2) of the Act or its proviso and that the detect in the verification and the affidavit is a curable one. 21. A survey of the above decision makes it explicit that an election petition mandatorily has to contain a concise statement of essential facts which an election Petitioner has to indispensably prove for obtaining the reliefs) prayed for. Such statements unmistakably have to constitute a complete cause of action for the election petition so much so that an omission to narrate a single material fact would result in an incomplete cause of action rendering the petition liable to be dismissed. If a charge of corrupt practice is levelled, the election Petitioner is required to set forth the full particulars of such corrupt practice including as full a statement as possible of the names of the parties alleged to have committed the same and the date and place of the commission of each such act. It is thus incumbent on the election Petitioner having regard to the edict of Section 83(1)(b) that in addition to furnishing the basal facts providing the ingredients of the corrupt practice(s) alleged also to supply particulars regarding the persons involved as well as the date, time and place as well as the manner of commission thereof. 22. The underlying purpose is to put the returned candidate to notice of the facts to be proved in course of the trial in support of the charges as well as to bind down the election Petitioner thereto to obviate the possibility of introducing evidence at his convenience and exclude the possibility of an unwarranted fishing and roving inquiry. 22. The underlying purpose is to put the returned candidate to notice of the facts to be proved in course of the trial in support of the charges as well as to bind down the election Petitioner thereto to obviate the possibility of introducing evidence at his convenience and exclude the possibility of an unwarranted fishing and roving inquiry. Though a charge of corrupt practice when made, the allegation relating thereto have to be strictly construed, if the election petition contain the basic and preliminary facts carrying the ingredients of corrupt practice defined in the Act, the omission to furnish the details and full proof particulars of all conceivable aspects of the alleged corrupt practice may not necessarily lead to striking out of the pleaded statements. The acid test is whether, on the basis of the pleaded facts, the cause of action for the election petition is decipherable and that the election Petitioner be permitted in law to adduce evidence in support thereof. The answer, if, is in the affirmative, the resultant triable issues have to be adjudicated upon. 23. To ascertain as to whether the pleaded facts relied upon by the election Petitioner constitute a cause of action and disclose one or more of grounds enumerated in Section 100 of the Act, I am of the considered view that the election petition as a whole has to be read. While vagueness in pleading in an election dispute in the face of the prescription of Section 83 cannot be approved, it is apparent that non compliance of the precepts of the said provision of the Act does not per se entail dismissal of the election petition in limine. Moreover, the contents of the election petition are liable to be struck out if those are found to be unnecessary, scandalous, frivolous and vexatious so as to prevent embarrassment and delay of the trial of the election proceeding as well as if the same amounts to an abuse of the process of the Court. The necessity of safeguarding the sanctity of an election process notwithstanding, if a charge of corrupt practice is levelled and the required facts are furnished in support thereof, in my view, the prayer for striking out the pleadings relatable thereto has to be dealt with circumspection test, a genuine and formidable ground of assailments prescribed by the Act gets defeated on technical considerations. A delicate balance, therefore, has to be struck between the presumable validity of an election process culminating in the return of the successful candidate and the bonafide of the impeachment thereof on any one or more of the grounds acknowledged in law. 24. Non compliance of the prescription of Section 83 of the Act though not per se fatal attracting the consequence of dismissal of an election petition in limine as envisaged in Section 86 of the act, contents thereof if do not prima facie make out any one or more of the grounds enumerated in Section 100 would be liable to be struck out as unnecessary, frivolous and vexatious to obviate delay of the trial of the election proceeding and to prevent abuse of the process of the Court. To be in conformity with the legislative intendment, an election petition must therefore, contain the essential facts constituting a complete cause of action. If a corrupt practice is alleged, those facts must mandatorily furnish the necessary ingredients thereof. The insistence for the particulars of the corrupt practice as above is to put the candidate concerned to notice in advance and anticipate the evidence in support of the allegations. The underlying objective is also to lay the factual foundation of the accusation so that the election Petitioner is not permitted to adduce evidence later on at his convenience keeping the election petition vague. A marginal flexibility is permissible in the matter of further details regarding the person involved and the date and place of commission thereof as it may not be possible for the election Petitioner to furnish the same at the time of filing the election petition. But no relaxation is conceivable vis-a-vis the material facts constituting the corrupt practice. The facts sufficient to identify the corrupt practice alleged have to be mandatorily stated in the election petition. As the assertion of corrupt practice is akin to a criminal charge, hence the insistence for fuller particulars thereof. 25. The election petition thus is liable to be rejected if the same does not disclose material facts constituting a complete cause of action or it a corrupt practice is alleged the basic ingredients thereof are not disclosed or facts pleaded do not constitute any one or more of the grounds enumerated in Sections 100 and 101 of the Act. 25. The election petition thus is liable to be rejected if the same does not disclose material facts constituting a complete cause of action or it a corrupt practice is alleged the basic ingredients thereof are not disclosed or facts pleaded do not constitute any one or more of the grounds enumerated in Sections 100 and 101 of the Act. In such cases, no amount of evidence can cure the inherent defect, the legislative intention being clearly against any fishing and roving inquiry into the vague, omnibus and indeterminate allegations. 26. It is, in this background that the contents of the paragraphs referred to above would have to be tested to survive the challenge under Order 6 Rule 16 Code of Civil Procedure. I propose to proceed ad seriatum. 27. Paragraph-6- The paragraph contains a general statement to the effect that the Respondent No. 1 resorted to corrupt practice of bribery under Section 123(1) and also obtained assistance from government servant named therein under Section 123(7) of the Act in furtherance of his election prospects in many ways. The contents, on a plain reading do not disclose any ingredient of the corrupt practices alleged. The affidavit annexed to the election petition also does not refer to any such corrupt practice vis-a-vis the said paragraph. The affidavit sworn in support of the allegation of corrupt practice (s) also does not refer to this paragraph of the election petition. The verification also does not disclose the source of the election Petitioner's information about the correctness of the statements made therein. In the above premises, the contents of this paragraphs are considered to be unnecessary and are therefore struck out. 28. Paragraph-7 This paragraph deals with the factum of transfer of Sri Munindra Bordoloi as Extra Assistant Commissioner, Golaghat and Executive Magistrate, Border on a request made on behalf of the election Petitioner. The said officer described to be an active member of All Assam Students Union and a supporter of the Assam Gana Parishad did not carry out the transfer and remained as Sr. Block Development Officer, Dhemaji and was entrusted with the duty to examine the election expenditure of the contesting candidates of the 113- Dhemaji (87) LAC of the 14- Lakhimpur Parliamentary Constituency. Block Development Officer, Dhemaji and was entrusted with the duty to examine the election expenditure of the contesting candidates of the 113- Dhemaji (87) LAC of the 14- Lakhimpur Parliamentary Constituency. The statements contained in the above paragraph do not disclose material facts or particulars of any corrupt practice or contravention of any provision of the Constitution or the Act or Rules or Orders framed thereunder. Interestingly, however, the schedule annexed to the election petition refers to the corrupt practice under Section 123(7) of the Act mentioned in the paragraph, where, in fact, there is none. As the statements made in the paragraph are considered to be unnecessary, which if retained would unjustifiably delay the disposal of the election petition, the same are struck out. 29. Paragraph 8- The election Petitioner has averred that Sri Munindra Bordoloi referred to above withdrew government money as Sr. Block Development Officer on 26.03.2004 from Muchkhowa Development Block and used his official position in Dhemaji District for furtherance of the election prospects of the applicant/Respondent No. 1. The contents of this paragraph do not disclose any ingredient of corrupt practice under Section 123(7) of the Act, though the schedule to the election petition refers thereto. The verification and the affidavit to the election petition though mention that the statements are true to the information of the election Petitioner derived from the records, there is no reference of the source thereof in the paragraph. As the contents of the paragraph in question do not furnish material facts or particulars relating to any corrupt practice or contravention under Section 100(1)(iv)(d) , the same are considered to be unnecessary and frivolous and are thus struck out. 30. Paragraph 9- This paragraph contains instances wherefrom Election Petitioner has deduced that Sri Munindra Bordoloi Sr. Block Development Officer, Muchkhowa Development Block and Aswani Doley, Sr. Block Development Officer, Borodoloni Development Block had misused their position, distributed money and favours, gave allurements and induced people of various segments of the constituency to cast their votes in favour of the applicant/Respondent No. 1 with his/his agent's consent. The introductory statements are therefore, the conclusions drawn from the incidents narrated in the following subparagraphs. The facts comprising the individual instances therefore would have to independently survive the tests prescribed by Section 83 of the Act and the judicially evolved norms to be retained for trial. 31. The introductory statements are therefore, the conclusions drawn from the incidents narrated in the following subparagraphs. The facts comprising the individual instances therefore would have to independently survive the tests prescribed by Section 83 of the Act and the judicially evolved norms to be retained for trial. 31. Paragraph 9(i)- Allegation Munindra Bordoloi Senior Block Development Officer with his Accountant Sri Guna Phukan made payments on different dates in Deogharia and Noikuch village under Pub Machkhowagaon Panchayat and asked the people to cast votes in favour of the applicant/Respondent No. 1. This was reported to the Petitioner by one Nityananda Koch who witnessed the incident of payment on 21.04.2004 at about 1 P.M. The statements relating to the incident on the face of the records do not indicate that the corrupt practice alleged was committed either by the applicant/Respondent No. 1 or his agent including election agent or any person with his consent or the consent of his agent including his election agent. The statements are vague inasmuch as the allegation is that payments were made 'to people' and on different dates. Though, corrupt practice alleged is one of bribery, the affidavit to the election petition suggests the same to be one under Section 123(7) of the Act. The incident also does not involve Sri Ashwini Doley in the episode which therefore is inconsistent with the prefatory statements in paragraph 9 under scrutiny. In the above view of the matter, the required material facts and particulars of the allegation of corrupt practice being absent the same cannot be retained for trial and are therefore struck out as vague unnecessary, scandalous and vexatious. 32. Paragraph 9(ii) Allegation- Sri Munindra Bordoloi made payments in different Anchalik Panchayat of Machkhowa Development Block to people from 20.04.2004 to 24.04.2004 under various schemes and asked them to vote in favour of the applicant/Respondent No. 1. He also made personal payments to gather votes from Ors. . The incident was reported to the election Petitioner by Sri Jiten Saikia who witnessed the incident of distribution of money. The statements in the sub paragraph in question besides being vague and omnibus also per se, do not indicate that the corrupt practice alleged was committed either by the applicant/Respondent or his agent including the election agent or any person with his consent or the consent of his agent or election agent. The statements in the sub paragraph in question besides being vague and omnibus also per se, do not indicate that the corrupt practice alleged was committed either by the applicant/Respondent or his agent including the election agent or any person with his consent or the consent of his agent or election agent. Though the schedule to the election petition mentions that the corrupt practice of bribery under Section 123(1) of the Act was committed, the affidavit refers to commission of the corrupt practice under Section 123(7) of the Act. In absence of any statement in the sub paragraph under consideration that the applicant/Respondent No. 1 or his agent had either sought for the assistance of the government servant named therein to further his election prospects or that the said officer had indulged in the alleged corrupt practice with his consent or the consent of his agent, I am of the view that necessary material facts and particulars with regard to the corrupt practice alleged are absent in the instant sub paragraph for which contents thereof are liable to be struck out which if retained would also lead to a fishing enquiry. 33. Paragraph 9(iii) Allegation- Sri Munindra Bordoloi came to the residence of one Romen Mili in the evening of 21.04.2004 at village Bengena Gorah and paid him Rs. 5000/- with a request to cast his vote in favour of the applicant/Respondent. Sri Romen Mili was asked to gather votes for him for the election to be held on 26.04.2004. The Petitioner was informed about the incident by Sri Romen Mili. On the face of the statements made, the same do not indicate that Munindra Bordoloi had distributed money as alleged with the consent of the applicant/Respondent or his agent including his election agent. There is no statement either that the applicant/Respondent or his agent including the election agent had sought for assistance of Munindra Bordoloi in procuring votes by distributing money. Though the schedule to the election petition suggests that thereby the corrupt practice of bribery under Section 123(1) was committed, the affidavit is in support of the corrupt practice under Section 123(7) of the Act. Considering the state of materials vis-a-vis the sub paragraph under consideration, I am of the view that the material facts and particulars furnishing the essential ingredients of corrupt practice alleged are wanting and consequently the contents thereof cannot be retained for trial. Considering the state of materials vis-a-vis the sub paragraph under consideration, I am of the view that the material facts and particulars furnishing the essential ingredients of corrupt practice alleged are wanting and consequently the contents thereof cannot be retained for trial. Sub para 9(iii) is therefore struck out. 34. Paragraph 9(iv)- Allegation- Sri Aswani Doley, Senior Block Development Officer, Bordoloi Dev Block visited village Berbanga on 15.04.2004 and paid Rs. 30,000/- to one Smti. Kalpana Konwar at 9 P.M. with a request to manage the village people to cast votes in favour of the applicant/Respondent. Smti. Kalpana Konwar was further assured to be provided with 8 Indira Awas Yojana houses for the village people. The Petitioner was informed about the incident by Smti. Kalpana Konwar. The statements in this sub paragraph also do not disclose that Sri Ashwini Doley had the consent of the applicant/Respondent or his agent including the election agent to distribute money and solicit votes as alleged. There is no statement either that the applicant/Respondent or his agent including the election agent had sought for the assistance of Sri Awsini Doley to further his election prospects in the manner narrated in the sub paragraph. Here as well, the schedule annexed to the election petition suggests commission of corrupt practice under Section 123(1) though the affidavit is in support of the corrupt practice under Section 123(7). As the material facts and particulars with regard to the basic ingredients of the corrupt practice alleged are absent. I am constrained to hold that the sub paragraph under consideration is liable to be struck off as unnecessary, frivolous and vexatious. 35. Paragraph 9(v) Allegation- The applicant/Respondent No. 1 on 25.04.2004 at 3 P.M. paid Rs. 20,000/- to Sri Majindra Nath Hazarika to cast his vote in his favour and also procure votes by paying other voters. Payment was made near the gate of Na-Satra Guest house, Majuli in presence of Kamal Payeng. The verification to the election petition discloses that the incident was reported to the election Petitioner by Majindra Nath Hazarika himself. The schedule annexed to the election petition indicates commission of corrupt practice under Section 123(1) by the above act of the applicant/Respondent. The affidavit is also to the said effect. The verification to the election petition discloses that the incident was reported to the election Petitioner by Majindra Nath Hazarika himself. The schedule annexed to the election petition indicates commission of corrupt practice under Section 123(1) by the above act of the applicant/Respondent. The affidavit is also to the said effect. On a consideration of the statements made in the present sub paragraph, I am of the view that the election Petitioner has been able to furnish the essential material facts and particulars as contemplated under Section 83 of the Act in support of the allegation of corrupt practice of bribery. This sub para therefore is retained for the trial of the election petition. 36. Paragraph 9(vi) Allegation- The applicant/Respondent No. 1 on 10.04.2004 at 6 P.M. paid a sum of Rs. 20,000/- to one Sri Lalit Kr. Deuri Bharali, resident of Chapakhowa Nizorapar requesting him to procure votes for him. The amount was paid in Sadia Circuit House in presence of Sri Babu Singh Deuri. The verification to the election petition mentions that the information about this incident was reported to the election Petitioner by Sri Lalit Kr. Deuri Bharali and the schedule as well as the affidavit indicate that corrupt practice under Section 123(1) had been committed by the applicant/Respondent No. 1. Having regard to the statements made in this sub paragraph, clearly involving the applicant/Respondent No. 1 in the commission of corrupt practice of bribery as alleged, I am of the considered opinion that material facts and particulars of the said corrupt practice as necessary in law have been furnished and therefore the contents of the sub paragraph are not liable to be struck off. 37. Paragraph 9(vii)- Allegation- The polling centre at No. 55 Na-Bormurah LP School was closed by the Presiding Officer thereof at 4 P.M. though the polls hours, were in between 7 A.M. to 5 P.M. The Presiding Officer inspite of protests being raised by Ram Bahadur Pradhan, President of Booth Committee of the Petitioner did not allow about 200 voters assembled at the polling station to cast their votes. This was in violation of clause 44.1 of the Hand Book of the Returning Officer. On a plain reading of the statements, the same do not constitute any corrupt practice. This was in violation of clause 44.1 of the Hand Book of the Returning Officer. On a plain reading of the statements, the same do not constitute any corrupt practice. The same also do not suggest that the act complained of was committed with the consent of the applicant/Respondent No. 1 or his election agent. There is no trace of any allegation that the Presiding Officer was the agent or the worker of the applicant/ Respondent No. 1 or that the latter had sought for his assistance to further his election prospects. Surprisingly, however, the schedule to the election petition indicates commission of corrupt practice under Section 123(1) & 123(7) and the affidavit mentions about corrupt practice under Section 123(7) of the Act. No contravention of any provision of the Constitution Act or of any rules or orders made under the Act has been alleged. The material facts and particulars constituting the primary ingredients of the corrupt practice alleged being conspicuously absent in the Sub paragraph under consideration, the same are unnecessary for the purpose of the election trial and are therefore struck out. 38. Paragraph 9(viii)- Allegation- At the polling centre No. 54 Na Bormurah LP School, supporters of Assam Gana Parishad by impersonation cast votes for Sri Man Bahadur Chetri & Narayan Chetri which was allowed by the Presiding Officer inspite of objections being raised by Prakash Chetri, Polling agent of the election Petitioner. The schedule to the election petition asserts commission of corrupt practice under Section 123(1) and the affidavit those under Section 123(7) and 123(8) of the Act. The statements furnished in the sub para contain no whisper that the act complained of was done at the instance of the applicant/Respondent No. 1 or with his consent or with the consent of his election agent. There is no allegation that the applicant/Respondent had sought for assistance of the Presiding Officer of the polling station in the commission of such act. This sub paragraph being conspicuously silent as regard the basic ingredient of corrupt practice as alleged, the same are liable to be struck out. This is more so, in view of the apparent inconsistency in the schedule and the affidavit to the election petition. 39. Paragraph 9(ix)- Allegation- The applicant/Respondent No. 1 made a gift of a Motor Cycle and a sum of Rs. This is more so, in view of the apparent inconsistency in the schedule and the affidavit to the election petition. 39. Paragraph 9(ix)- Allegation- The applicant/Respondent No. 1 made a gift of a Motor Cycle and a sum of Rs. 10,000/- to Laiandra Daimary for the purpose of election campaigning and requested him to cast his vote in his favour and also to procure votes for him. The schedule and the affidavit annexed to the election petition support the assertion of commission of corrupt practice of bribery. As the statements in the sub para disclose that the motor cycle as well as the money was gifted/paid for the purpose of election campaign of the applicant/Respondent No. 1, the allegation of corrupt practice of bribery is per se not tenable. Further, there is no allegation that Sri Laindra Daimary had parted with the said money to induce voters to vote for the applicant/Respondent. In the above premises, primary ingredients of corrupt practice of bribery being absent, the contents of this sub para are liable to be struck out. 40. Paragraph 10 to 13- These paragraphs deal with the allotment transportation and safe custody of Electronic Voting Machines (EVM). The objection raised is that though under Clause 20.1, 20.2, 20.3 and 20.4 of Chapter XII of the Hand Book of Returning Officer, the EVMs are to be kept in charge of the Assistant Returning Officer or some other Senior Officers, 7 EVMs were permitted to be kept in the custody of persons of AMTRON and ECIL and Special Area Officers which was in contravention of the Rules and had resulted in tampering of EVMs and facilitation of casting of votes in favour of the applicant/Respondent thereby materially affecting the results of the election. The instructions contained in the Hand Book of Returning Officer being the guidelines framed by the Election Commission cannot be equated with the Rules or Orders under the Act and therefore contravention thereof per se would not constitute a ground under Section 100(1)(d)(iv) of the Act. The allegations to the effect that there has been violation of Rules and tampering the EVMs and that thereby the results of the election have been being materially affected have no factual foundation. The contents in this paragraph under consideration do not constitute material facts constituting any ground for challenging an election under the Act. The allegations to the effect that there has been violation of Rules and tampering the EVMs and that thereby the results of the election have been being materially affected have no factual foundation. The contents in this paragraph under consideration do not constitute material facts constituting any ground for challenging an election under the Act. The same are thus considered unnecessary and frivolous and are struck out. 41. Paragraph 14- The contents of this paragraph are excerpts of Hand Book of Returning Officers which in view of determination vis-a-vis paragraphs 10 to 13 have been rendered unnecessary and are consequently struck out. In any view of the matter, retention of the contents of this paragraph would not make any material difference to the trial of the election petition. 42. Paragraph 15- Allegation- The introductory line of this paragraph contain the conclusion of the election Petitioner that tampering of EVMs took place with the connivance of the Officers on Election Duty which furthered the prospects of the applicant/Respondent No. 1, and thereby corrupt practices under Section 123(7) and 123(8) of the Act were committed besides, materially affecting the election of the Petitioner. There prefatory statements therefore are not relevant to sustain the allegations constituting the individual instances to follow, which have to withstand the scrutiny on the touchstone of Section 83 of the Act and the judicially evolved principles on their own strength. 43. Paragraph 15(a)- Allegation- Pankaz Chakraborty, ACS on 23.04.2004 received EVMs for South Bank Part of 126 Sadiya LAC, but did not inform Sri Lakhi Kanta Das, Agent of Indian National Congress as to whether the EVMs were under double lock. Sri Das found that the EVMs were not kept under double lock. The polled EVMs were brought to Saikhowa Higher Secondary School on 26.04.2004 where there was no strong room and the EVMs were kept without double lock and that the Presiding Officer stayed with the unlocked polled EVMs. He was not allowed to stay. However, the agent of A.G.P. was allowed to stay with the polling officials. The statements even if taken on their face value do not make out the ingredients of any corrupt practice, though the schedule and the affidavit to the election petition suggest that corrupt practices under Section 123(7) and 123(8) were thus committed. He was not allowed to stay. However, the agent of A.G.P. was allowed to stay with the polling officials. The statements even if taken on their face value do not make out the ingredients of any corrupt practice, though the schedule and the affidavit to the election petition suggest that corrupt practices under Section 123(7) and 123(8) were thus committed. The contents of the sub paragraph do not bear any testimony of involvement of the applicant/ Respondent or his election agent in either seeking assistance of any government official or their consent to perpetrate the alleged violations. The election Petitioner has not indicated the provisions of the Act, Rules or Order contravened by the acts complained of. In the above view of the matter, as the statements of this sub paragraph do not furnish the material facts to make out any ground of challenge, contemplated by the Act, those are unnecessary and are therefore struck out. 44 Paragraph 15(b)- Allegation- The polled EVMs were brought to Dholla Higher Secondary School on 26.04.2004 where there was no strong room. Though the Presiding Officer remained with the EVMs, Sri Bikash Chetri, agent of BJP was not allowed to stay. The schedule and the affidavit to the election petition assert commission of corrupt practices under Section 123(7) and 123(8) of the Act. The statements in the sub paragraph under scrutiny do not bear any trace of any corrupt practice. The same does not mention about the provision of the Act, Rules or Orders framed thereunder said to have been contravened. No involvement of the applicant/Respondent, his agent including the election agent or any of his worker or supporter is alleged. In the above view of the matter, the statements being lacking in material facts constituting any of the ground of assailment of the applicant/Respondent's election under the Act, the same do not deserve to be retained and are therefore struck out. 45. Paragraph-16- Allegation- The button of the EVM against the name and symbol of the Petitioner used at No. 9 Tiohjulia LP School polling centre was defective and not working. On complaint being made by the voters, the Presiding Officer got some repairing works done through a technician. Ultimately, it was found that the Petitioner did not poll a single vote in the said polling centre. The EVM was defective or manipulated depriving the election Petitioner of her legitimate votes. On complaint being made by the voters, the Presiding Officer got some repairing works done through a technician. Ultimately, it was found that the Petitioner did not poll a single vote in the said polling centre. The EVM was defective or manipulated depriving the election Petitioner of her legitimate votes. This amounted to tampering of EVM. A written complaint on 13.05.2004 was submitted. The contents of this paragraph do not make any allegation that the EVM was made non functional vis-a-vis the election Petitioner at the instance of the applicant/Respondent or his election agent or any other agent, worker or supporter with his consent or the consent of his election agent. On the other hand, it is admitted that the EVM concerned was got repaired by the Presiding Officer. There is no statements either that the EVM was tampered with by the Presiding Officer as the applicant/Respondent or his election agent had sought for such assistance to further his election prospects. The written complaint about the EVM also does not disclose any involvement of the applicant/Respondent, his agent and any other worker or supporter. That the alleged happenings constitute a corrupt practice under Section 123(7) is therefore prima facie not borne out by the statements of this paragraph. In absence of material facts constituting any ground rendering the election of the applicant/Respondent void as contemplated under the Act, the statements are unnecessary and frivolous and are thus struck out. 46. Paragraph 17-Allegation-The Returning Officer detected blank Forms 17C in various polling stations mentioned therein. Sri Prasanta Baruah, ACS, Election Officer, Dhakuakhana managed to stay his transfer order by notification dated 12.09.2003. Being a strong supporter of AGP, he engaged Presiding Officers having sympathy for AGP to further the election prospects of the applicant/Respondent No. 1. The statements even if accepted in their entirely at best may amount to contravention of Rules 49(b) and 56(c)(2) of the Conduct of Election Rules, 1961. The same do not proclaim as to how the results of the election so far as the returned candidate is concerned was materially affected thereby. No ground per se for challenging the election of the applicant/Respondent on the basis of the contents of this paragraph being made out, the same if retained, in my view would only unnecessarily delay the election trial and are therefore struck out. 47. No ground per se for challenging the election of the applicant/Respondent on the basis of the contents of this paragraph being made out, the same if retained, in my view would only unnecessarily delay the election trial and are therefore struck out. 47. Paragraph 18- This paragraph states that for the violation of the mandatory provisions of the Rules as above, the delinquent Presiding Officers were subjected to disciplinary action. This paragraph in isolation and in face of the determination vis-a-vis paragraph 17 has no utility and is therefore struck out. 48. Paragraph 19- Allegation-Due to violation pertaining to EVMs there has been tampering thereof with the connivance of the government officers thus fathering the election prospects of the applicant/Respondent No. 1 for which the results of the election have been materially affected. The statement which is in the nature of a conclusion has to be logically tested in the context of the preceding paragraphs relating to the EVMs. As the contents of the related paragraphs have been struck out for the reasons enumerated hereinabove, in my view, retention of this paragraph is uncalled for. This paragraph is also struck out. 49. Paragraph 20- The inaugural statements of this paragraph constitute a deduction of the election Petitioner that there were instances of booth capturing by the supporters of the applicant/Respondent who prevented free exercise of voting in connivance of the Presiding Officer who had acted as his agent and with his consent. 50. Paragraph 20(a), (b), (c), (d)-Allegation- Supporters of the applicant/Respondent No. 1 cast votes in place of original voters at polling centre Nos. 55, 56, 75, 85 and 89 in Jonai LAC inspite of protests being raised by the polling agent of the election Petitioner. The concerned Presiding Officer did not take any action. No name of any of the supporters of the applicant/Respondent No. 1 or the original voters has been mentioned. Written complaints have also not been filed with the election petition. The schedule and the affidavit annexed refer to corrupt practice under Section 123(7) of the Act and not 123(8). The statements are therefore wholly vague and cannot be construed to contain material facts or particulars furnishing the basic ingredients of the corrupt practice of booth capturing under Section 123(8) of the Act. The schedule and the affidavit annexed refer to corrupt practice under Section 123(7) of the Act and not 123(8). The statements are therefore wholly vague and cannot be construed to contain material facts or particulars furnishing the basic ingredients of the corrupt practice of booth capturing under Section 123(8) of the Act. Retention of this paragraph would lead to a fishing and roving enquiry permitting the election Petitioner to select and adduce evidence at his convenience which is impermissible. Having regard to the judicially evolved principles noticed hereinabove, the contents of this paragraph are therefore struck out. 51. Paragraph 20(e) Allegation - At 8 A.M. on the date of the poll at polling station No. 47 of LAC No. 114, three Bodo youths with whom Sri Phukan Mipun, the polling agent of the election Petitioner was not acquainted visited the poling centre and after taking to the Presiding Officer started voting in favour of the applicant/Respondent No. 1 by EVM and cast about 796 votes in his favour. On objection being raised by the polling agent of the election Petitioner, three youth threatened him and the Presiding Officer also remained silent as the fire arms carried by them were partially visible. The Presiding Officer stopped polling at 3 P.M. though polling time was upto 5 P.M. The statements made in the sub paragraph per se do not disclose that the Bodo youths were the agents/supporters or workers of the applicant/Respondent No. 1 or had resorted to the act complained with the consent of the applicant/Respondent or his election agent. The schedule and the affidavit to the election petition mentioned that the corrupt practice under Section 123(7) of the Act had been committed. In that view of the matter, the statements made in this sub para are liable to be struck out. 52. Paragraph 20(f) - Allegation - At 7.30 y A.M. at Polling station No. 49 of LAC No. 114, three Bodo youths appeared in the polling centre and started voting for the applicant/Respondent No. 1 threatening every one not to interfere. Being apprehensive, the officials of the polling party and the police did not raise any objection. The applicant/Respondent No. 1 therefore secured 760 votes whereas the election Petitioner polled only 18 votes. Being apprehensive, the officials of the polling party and the police did not raise any objection. The applicant/Respondent No. 1 therefore secured 760 votes whereas the election Petitioner polled only 18 votes. In this sub paragraph as well, there is no statement that the bodo youths were the agents or workers of the applicant/Respondent No. 1 or that they had resorted to the act complained with the consent of the applicant/Respondent No. 1 or his election agent. The schedule and the affidavit to the election petition refer to the corrupt practice under Section 123(7) of the Act, though the paragraph under consideration does not bear any testimony of such allegation. As the material facts and particulars constituting the corrupt practice of booth capturing as alleged are absent, the contents of the sub paragraph are hereby struck out. 53. Paragraph 20(g) - Allegation - A group of Bodo youths in separate groups entered the polling centers No. 84A, 84B, 85 and 89A and started voting in favour of the applicant/Respondent No. 1 keeping the polling party and the polling agents under threat of dire consequences. Though complaint was lodged by Boken Basumatary, a congress worker with Naba Deka Baruah, ACS officer on election duty, no steps were taken. The Bodo youths not having been identified to be the agents or workers of the applicant Respondent No. 1 or alleged to have resorted to the act charged with the consent of the applicant/Respondent or his election agent, the basic ingredients of corrupt practice of booth capturing being absent, the contents of this sub paragraph do not deserve to be retained and are struck out. 54. Paragraph 20 (h) - Allegation - This sub paragraph projects the inference of the election Petitioner that the extreme low polling by her in the polling stations mentioned therein, was due to booth capturing by Bodo youths in favour of the applicant/Respondent No. 1. This deduction being on the basis of assertions made in the preceding sub paragraphs cannot have any independent existence in view of the expunction thereof for want of essential material facts and particulars consisting/ constituting the corrupt practice of booth capturing. The contents of the sub paragraph consequently are also struck out. 55. This deduction being on the basis of assertions made in the preceding sub paragraphs cannot have any independent existence in view of the expunction thereof for want of essential material facts and particulars consisting/ constituting the corrupt practice of booth capturing. The contents of the sub paragraph consequently are also struck out. 55. The Apex Court in Harasingh Charon Mohanty, Appellant v. Surendra Mohanty Respondent AIR 1974 SC 47 held that the consent or agency cannot be inferred from remote causes, close friendship or political affiliation and in absence of a proof thereof, no consent can be inferred. 56. Reiterating the above view, the Apex Court in Mercykutty Amma, Appellant v. Kadavoor Sivadasan and Anr. Respondents (2004) 2 SCC 217 held that where consent of the candidate is a material factor, it is required to be pleaded and proved. 57. In none of the incidents of alleged corrupt practices, contents pertaining to which have been struck out as above, the election Petitioner has furnished any factual foundation of the consent as required under the Act. The prefatory lines in paragraphs 9 and 20 only convey the conclusions of the election Petitioner with regard to the consent of the applicant/Respondent or his agent founded on the incidents set out thereafter. As the statements relating to the individual instances narrated in the petition alleging corrupt practice, on scrutiny do not bear the material facts and particulars as required under the law, in my view the general statements of the election Petitioner on the commission of the alleged corrupt practices by the applicant/Respondent No. 1 or by Ors. with his consent or with the consent of his agent is of no relevance or significance. The narrated incidents having failed to withstand, the scrutiny of this Court when examined independently, the election Petitioner's assumption to the contrary cannot be decisive. 58. Paragraph 21 - Allegation - The incidents of booth capturing narrated in the petition had taken place in collusion with and connivance of Sri Naba Deka Baruah, Circle Officer, Sisirbargaon Revenue Circle, Dhemaji being a close relative of Dilip Saikia Sonowal the local MLA of the Assam Gana Parishad. The allegations of corrupt practice of booth capturing having been struck out on the scrutiny thereof for the reasons recorded hereinabove, the contents of this paragraph are irrelevant and are thus struck out. The allegations of corrupt practice of booth capturing having been struck out on the scrutiny thereof for the reasons recorded hereinabove, the contents of this paragraph are irrelevant and are thus struck out. In any view of the matter, the Petitioner's view reflected in the paragraph is wholly inferential without basic material footing. 59. Paragraphs 22, 23, 24, 25 and 28 The contents of these paragraphs bear a repetition of the averment that the applicant/Respondent No. 1 had won the election by resorting to various corrupt practices and violations of statutory provisions. 60. In view of the fact that the contents of the paragraphs 9(v), 9(vi) relating to the allegation of corrupt practive of bribery have been retained for trial, the paragraphs under consideration are not interfered with presently, but would be read subject to the determinations as above. 61. In the result, the application is partly allowed. The statements made in the paragraphs 6 to 8, 9(i) to 9(iv), 9(vii), 9(viii), 9(ix), 10 to 21 are struck out. Consequently, the contents of sub paragraphs 9(v), 9 (vi), 22 to 25 and 28 are retained for trial. Partly allowed.