Jharkhand High Court
Santosh Hembram vs Rabindra Nath Mahto on 29 October, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Election Petition No.06 of 2020
Santosh Hembram, age about 42 years, S/o Late Resendra
Hembram R/o Pitwasol, Village-G.P. Maheshmunda, PO-Sagjuria,
PS-Nala, District Jamtara, Jharkhand, PIN 815355
.......... Petitioner
Versus
Rabindra Nath Mahto, S/o Golak Bihari Mahto, R/o-Vill-Patanpur,
P.O-Mohanabanka, P.S-Bindapathata, District Jamtara, Jharkhand
........ Respondent
---------
CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD
———-
For the Petitioner : Mr. Mukesh Kumar Dubey, Advocate
: Mr. Deb Nandan Rajak, Advocate
For the Respondent : Mr. Arbind Kumar Lal, Advocate
: Mr. Anil Kumar, Advocate
For the State : Mr. Ashutosh Anand, AAG-III
———–
th
CAV on:17 October,2024 Delivered on:29.10.2024
The instant Election Petition has been filed on behalf of the
petitioner-Santosh Hembram under Section 80(A) (2) and 81 of the
Representation of Peoples Act, 1951 challenging the election of
the sole respondent, who was elected on 23.12.2019 from 08, Nala
Assembly Constituency as a member of the Jharkhand Legislative
Assembly.
2. The case of the election petitioner, in brief, is that:-
(i) The Notification was issued by the Returning Officer
for holding the election and the dates were fixed for filing of
nomination paper, scrutiny of nomination papers and
withdrawal of nomination paper and also the date of election
and the date of counting of votes as well as the date of
declaration of the result were published, which was fixed on1
03.12.2019, 04.12.2019, 06.12.2019, 20.12.2019, 23.12.2019
and 23.12.2019 respectively.
(ii) The Returning Officer had accepted the nomination
paper party wise for sixteen (16) persons and the Returning
Officer has rejected the nomination paper of four persons
also. As per election petition the name of the petitioner is
shown at Serial No.16 whereas the Respondent is shown at
Serial No.7 from Jharkhand Mukti Morcha (JMM).
(iii) According to the result sheet prepared by the Returning
Officer, the respondent had secured 61356 votes whereas his
rival Satyanand Jha of Bhartiya Janta Party had secured
57836 votes whereas the election petitioner had secured 1769
votes and as such the sole respondent was declared as a
Returned Candidate from 08, Nala Assembly Constituency.
(iv) The election of the sole Respondent/Returned Candidate is void on the ground that the sole
Respondent/Returned Candidate and his election agent and
other persons have committed in connivance and with
consent, the corrupt practice wherein the sole
Respondent/Returned Candidate and his election agent by
publication and statement. The ground comes within the
mandate of Section 100(1) (b) of Representation of People
Act, 1951.
(v) The sole Respondent-Rabindra Nath Mahato had filed
his nomination paper in three sets. The Election Agent of
Returned Candidate was Ashok Kumar Mahto R/o Village
Barmosia, Panchayat Khamaarbad, PO Tilaki, District
Jamtara. The petitioner has tried his best to obtain the
certified copy of all the sets of the nomination paper filed by
the sole Respondent but it is yet to be received, albeit
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requisition for certified copy was filed before the competent
authority on 25.01.2020.
(vi) The petitioner herein has filed his nomination paper as
independent candidate on 03.12.2019. The petitioner has
tried his best to obtain the certified copy of the nomination
paper filed by the petitioner but it is yet to be received, albeit
requisition for the same was filed on 25.01.2020.
(vii) The petitioner belongs to Schedule Tribes community
more specifically the petitioner belongs to Santhal Tribes.
(viii) The list of candidates were published in Format-7(k)
as per Rule 10(1) of the Representation of People Act.
(ix) After finalization of name of all the contesting
candidates and their position as given in Format-7(k) the
present sole respondent got printed handbill/pamphlet of
specimen of EVM Machines wherein the seriatim, name of
candidates his/her photograph and election symbols from
Lucky Printing Press.
(x) It has been stated that the present petitioner is member
of Schedule Tribes community more specially Santhal
community. The Nala Assembly Constituency is a tribal
dominated constituency where near about 32% of the
population belongs to Tribal Community. They got pasted
these handbills in the prominent place of the villages wherein
Schedule Tribes community resided in large numbers. They
persuade/advised the villagers not to cast vote at Serial
No.16 (i.e. the petitioner).
(xi) Some of the corrupt practices committed by the
Returned Candidate (i.e. the Respondent) and/or his agents
and other person are as follows:-
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(a) Village Jhantipahari-Prem Kumar Hembram has
informed the petitioner that the cadre of JMM
(Jharkhand Mukti Morcha) alongwith Sh. Sabut
Murmu came to village Jhantipahari on 15.12.2019 at
evening and distributed the above said
handbill/pamphlet and specimen of EVM among
villagers in door-to-door campaign and organized
meeting at Chaupal for campaign and influenced the
villagers by persuading that any vote cast in Serial
No.16 would goes in vain. They advised to not give
vote in Serial No.16.
(b) Village Jaspur-Umesh Murmu has informed the
petitioner that Jaydhan Hansda and Rupchand Hansda
came to his village Jaspur on 16.12.2019 in the evening
and in door-to-door campaign distributed and pasted
the above said handbill in many places and requested to
cast their vote his party at Serial No.7 and influenced
the villager by persuading them that any vote cast in
Serial No.16 would goes in vain. Thus, thereby
advised to not give vote in Serial No.16.
(c) Village Jabardaha-Priya Ranjan Baski has
informed the petitioner that on 17.12.2019 Ramdeo
Soren and Much Marandi came to village Jabardaha
along with other party worker of JMM with a specimen
EVM demonstrating and influencing to cast their vote
his party at Serial No.7 and influenced the villager by
persuading that any vote cast in Serial No.16 would
goes in vain.
(xii) The petitioner had arrived on 20.12.2019 at 3.00 p.m
at village Patanpur at Booth No.91 and 92 then he found the
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members of the JMM and cadre of the sole respondent were
undue influencing voters and distributed the dummy EVM
Machines and copy of said handbill depicting the position of
the sole respondent at Serial No.7 and at Serial No.16 Nota
was shown. The said event was photographed by the present
petitioner himself on 20.12.2019 at the village Patanpur,
Block Nala, District Jamtara and photo copy of the event has
been annexed as Annexure-6.
(xiii) Being aggrieved with the corrupt conduct and practice
of the sole Respondent, the petitioner herein telephonically
complained to the election officers on the same day.
Thereafter he has given written complaint to the official
posted at District Level and State Election Commission as
well as Election Commission of India.
Photo copy of written complaint filed by the present
petitioner dated 22.12.2019 and acknowledgement has been
annexed as Annexure-7.
(xiv) It has been stated that the handbill/pamphlet printed
and distributed by sole respondent or his election agent or
other agents with consent and connivance of sole respondent
were aimed at furthering the election prospect of the sole
respondent by means of corrupt practice as stipulated in
Section 100(1) (b) r/w Section 123 (4) of Representation of
People Act, 1951 which is against the electoral prospect of
present election petitioner.
(xv) It has been stated that the petitioner has deposited the
required security deposited as contemplated under Section
117 of the Representation of People Act, 1951 in this
Hon‟ble Court vide Challan No.J-185 dated 03.02.2020.
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3. The case of the respondent-Rabindra Nath Mahto as per
Written Statement dated 12.10.2022, in brief, is as follows:-
(i) This election petition is not maintainable in the eye of
law and as such liable to be dismissed with heavy
compensatory cost.
(ii) The petitioner has failed to make out any prima facie
case against the respondent. It has been stated that the
affidavit sworn by the election petitioner has also not been
sworn in accordance with Rule 61 of Jharkhand High Court
Rules.
(iii) It has been stated that the election petition has stated
several statements in the election petition but the same are
not supported by affidavit in Form-25 as required under
proviso to Section 81 (1) of the Act read with Rule 94 A of
the Conduct of Elections Rules 1961.
(iv) The election petitioner has annexed several documents
as annexures of the election petition and on perusal of the
same, it is crystal clear that each and every annexure has not
been properly verified nor affidavitated in accordance with
law, hence the election petition is liable to be dismissed
accordingly.
(v) The copy of the election petition and the affidavit
therein as supplied to the Respondent No.1 does not contain
the affirmation by the Oath Commissioner. Under these
circumstances such defect is not curable defect. Therefore,
the present election petition deserves to be dismissed in
accordance with law.
(vi) It has been stated that in view of non-compliance of
Section 83 of Representation of Peoples Act, 1951 the
election petition deserves to be dismissed. Since the full
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particular of material facts and particular of relating to
corrupt practices in the election petition has not been
complied with, the election petition deserves to be summarily
dismissed.
(vii) The respondent denied that he and his election agent
and other persons, have committed in connivance and with
consent the corrupt practice bearing the sole respondent has
declared successful.
(viii) It has been denied by the respondent that the ground
taken by the election petitioner comes within the mandate of
Section 100 (1) (b) of the Representation of Peoples Act,
1951.
(ix) The respondent denied to have got printed
handbill/pamphlets of specimen of EVM Machine wherein
the seriatim, name of candidates his/her photographs and
election symbols from Lucky Printing Press. He also denied
that he got printed and depicted his name, photographs and
symbol at Serial No.7 and he got deliberately printed the
name of the petitioner at Serial No.16 (Nota). It is stated that
the copy of printed handbill/pamphlets has been annexed as
Annexure-5.
(x) The alleged handbill wherein in Serial No.16 as NOTA
has been shown is frivolous and malicious. The same has
neither been printed nor distributed whatsoever either by this
respondent or any of his part worker or supporter. The
question of pasting the alleged handbill in the prominent
places of the villages also does not arise. The petitioner has
made false allegation only to malign his image. The election
petitioner has not mentioned as to in which place and village
or villages, the respondent has distributed the alleged
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handbill/pamphlets etc. and on which date and time as
neither the respondent nor his election agent got
published/printed the alleged handbills/pamphlets and as
such no prejudice is caused to the election petitioner.
(xi) Distribution of alleged handbill in village Jhantipahari
and other villages on 15.12.2019, 16.12.2019 and 17.12.2019
respectively is nothing but a totally false story. As such, the
election petitioner has not mentioned anywhere as to whom,
which voter the alleged handbill/pamphlet was given and as
such without prejudice it is hereby submitted that at the time
of such alleged occurrence, what the supporters of election
petitioner has done to protest the same.
(xii) That the date 20.12.2019 was the date of polling and at
the place of polling Presiding Officers of such booths of
Booth no.91 and 92 along with other administrative
personnel were present there. But in spite of this fact no
complain whatsoever was made by the election petitioner to
them. As such it is crystal clear that no such alleged
occurrence happened as alleged and as such question of
taking photographs by the election petitioner himself is
nothing but a photo shopping through computers with full of
ulterior motive and bad intention in order to misuse the
process of law.
(xiii) It has been stated that this respondent is a very
popular leader in his area as such he secured the highest vote
i.e. 61,356 whereas the election petitioner has got only 1769
votes. Thus, it is clear that there is a huge difference of
59587 votes. As such the result of the election has not been
materially affected and hence the election of this respondent
is not at all liable to be declared void but instead the election
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petition itself deserves to be dismissed with heavy
compensatory cost. Hence this Election Petition may be
dismissed.
4. Heard Mr. Mukesh Kumar Dubey, learned counsel assisted
by Mr. Deb Nandan Rajak, learned counsel for the petitioner, Mr.
Arbind Kumar Lal, learned counsel for the respondent assisted by
Mr. Anil Kumar.
5. Learned counsel for the petitioner submitted that the election
of the respondent may be declared void and illegal, who has been
illegally elected from 08-Nala Assembly Constituency from the
Jharkhand Mukti Morcha political party. It is submitted that the
petitioner and several other persons and the respondent had
contested 08-Nala Assembly election which was held on
20.12.2019. However, the respondent by adopting unfair means
and corrupt practices became the Returned Candidate. The
petitioner has contested the said election of 2019 as an
Independent Candidate and he is a member of Scheduled Tribe and
the number of votes in the said constituency is very high and the
petitioner is a very popular among the people of Scheduled Tribes
at 08-Nala Assembly Constituency and he was confident of
winning the said seat. However, during course of election
campaign, he learnt from one Prem Kumar Hembram that the
cadre of JMM (Jharkhand Mukti Morcha) along with Sh. Sabut
Murmu came to village Jhantipahari on 15.12.2019 at evening and
distributed the above said handbill/pamphlet and specimen of
EVM among villagers in door-to-door campaign and organized
meeting at Chaupal for campaign and influenced the villagers by
persuading that any vote cast in Serial No.16 would go in vain. It
is submitted that Umesh Murmu has informed the petitioner that
Jaydhan Hansda and Rupchand Hansda came to his village Jaspur
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on 16.12.2019 in the evening and in door-to-door campaign
distributed and pasted the above said handbill in many places and
requested to cast their vote his party at Serial No.7 and influenced
the villager by persuading them that any vote cast in Serial No.16
would goes in vain. It is submitted that Priya Ranjan Baski has
informed the petitioner that on 17.12.2019 Ramdeo Soren and
Much Marandi came to village Jabardaha along with other party
worker of JMM with a specimen EVM demonstrating and
influencing to cast their vote his party at Serial No.7 and
influenced the villager by persuading that any vote cast in Serial
No.16 would go in vain. It is submitted that the petitioner on
20.12.2019 when arrived at village Patanpur at Booth No.91 and
92 then he found the members of the JMM and cadre of the sole
respondent for undue influencing voters distributed the dummy
EVM Machines. It is submitted that the Respondent got distributed
the handbills and pamphlets through his Election Agent or other
agents among the general public by adopting corrupt practices and
due to which the Petitioner has lost significant votes and as such
the election of the Respondent may be declared void.
6. It is further submitted that villager Umesh Murmu of village
Jaspur informed him that similar propaganda was made house to
house in his village by showing demo that Rabindra Nath Mahto,
candidate of JMM is shown at Serial No.7. Even Umesh Murmu
informed that Jaydhan Hansda and Roopchand Hansda were
propagating in favour of JMM to give vote at Serial No.7 and
further not to give vote at Serial No.16 showing it as „NOTA‟.
Similarly, in the village Jabardaha he also learnt during his
election campaign that JMM volunteers Ramdeo Soren and Much
Marandi are propagating to vote in favour of Rabindra Nath Mahto
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at Serial No.7 and Serial No.16 was shown as „NOTA‟ for not
giving vote.
7. It is further submitted that the respondent has failed to file
his Written Statement before this Court within time and the
Written Statement filed by the respondent has not been accepted
till date by this Court. It is submitted that the respondent has filed
I.A No. 8791 of 2022 under Section 148 C.P.C for extension of
time in filing his Written Statement. It is submitted that as per
provisions of Civil Procedure Code, the Written Statement was
required to be filed within 60 days from the side of the respondent
and which can be extended only for further 60 day by the Court on
its discretion and thus, the period of filing the limitation petition in
the suit is only 60 days + 60 days=120 days only and which could
not be condoned by the Court also. It is submitted that the Hon‟ble
Supreme Court has held that the Written Statement cannot be
accepted beyond the statutory period. It is further submitted that
under Order VIII Rule 2 of the C.P.C, the evidence adduced on
behalf of the respondent is not admissible as there is no proper
pleading of any document. It is submitted that although vide order
dated 11.07.2022, the Co-ordinate Bench (Hon‟ble Mr. Justice
Gautam Kumar Chaudhary) of this Court had permitted the
respondent to file his Written Statement but mere filing of Written
Statement is not sufficient as the same has not been accepted by
this Court till date. It is submitted that even single vote obtained by
the respondent by adopting the corrupt means would render the
entire election vitiated. It is submitted that the document marked
as Exhibits (on admission) of both the sides are not admissible in
evidence.
8. In support of his contention, learned counsel for the
petitioner has relied upon the judgment reported in AIR 1955 (1)
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SCR 608 (Jamuna Prasad Mukhariya and Ors. vs. Lachhi Ram
and Ors.) in which Hon‟ble Supreme Court has held that vote
obtained through corrupt practice and fraud would render the
election void and illegal against the sole respondent. It is further
submitted that the petitioner had himself visited several sites and
had gone to several booths including the Booth No.91 and 92 at
Patanpur and he had also noticed that the volunteers of JMM were
distributing pamphlets and handbills in which the name of the
respondent was printed at Serial No.7 whereas the name of the
petitioner has been printed at Serial No.16 and he took photograph
of the same from his mobile phone and got it enlarged through the
nearby shop and which reveals that several JMM volunteers were
distributing illegal pamphlets. The Respondent got printed the said
illegal pamphlet from Lucky Printing Press and thus has adopted
the corrupt practices. It is submitted that evidence of R.W-1 to
R.W-8 namely, Janardhan Bhandari, Jaydhan Hansda, Binod Raut,
Sadhucharan Mahto, Manoranjan Hansda, Musuhy Marandi, Kali
Pada Murmu and Sona Yadav respectively are not reliable as they
are interested witnesses and they have given evidence before this
Court under the influence of the respondent-Rabindra Nath Mahto.
It is submitted that R.W-9 is the respondent himself and he has
also failed to show the expenses incurred towards the election
campaign. It is submitted that R.W-9 has himself admitted during
cross-examination that he had got prepared poster and banner from
„Bharat Traders‟ Press but he had not examined any person from
„Bharat Traders‟ Press, Ranchi in support of his case. Neither the
candidate nor the representative of the said „Bharat Traders‟ Press
has been examined nor the Respondent has not filed any
Expenditure Register to show that he had got printed the pamphlet
from said Bharat Traders Press.
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9. It is submitted that Much Marandi and Ramdeo Soren were
distributing pamphlet like Exhibit-01 at village Jabardaha and they
have not been examined on behalf of the respondent to show that
they were not doing the illegal acts of corrupt practices. It is
submitted that the petitioner has sent complaint to Deputy
Commissioner, Jamtara and also to the Returning Officer, Jamtara
and also to the Election Commission of India on 22.12.2019 and
also on 18.02.2020 but no action was taken by the State authorities
against the said Respondent and hence the petitioner has been
compelled to file this election petition. It is submitted that even the
complaint of the petitioner has not been taken care of by the
authorities of the State as they were in connivance with the
respondent. Thus, the election of the respondent may be declared
void and illegal.
10. On the other hand, learned counsel for the Respondent has
submitted that this election petition is not maintainable. It is
submitted that all the contestants have not been made parties in
this election petition. It is submitted that original copy of the
Election Petition has not been served upon the Respondent. It is
submitted that respondent got knowledge of this case only after
paper publication of notice issued by the petitioner and thereafter,
he had been given the photo copy of the election petition.
It is submitted that this election petition has been filed under
Section 80(A) (2) and 81 of the Representation of Peoples Act,
1951 (hereinafter in short referred to as „R.P. Act‟), however no
averments has been made in regard to Section 100 (1) and 101 of
R.P. Act which relates to corrupt practice made by the candidate in
terms of Section 123 of the Representation of People Act. There is
no averment with regard any corrupt practice allegedly made by
the Respondent at the time of filing this election petition. There is
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neither any pleading nor any cogent evidence has been led down
on behalf of the petitioner. It is submitted that there is no
allegation in the election petition as to who had done corrupt
practices at the instance of the respondent. It is submitted that
Section 123 of the R.P. Act deals with the corrupt practices but
nothing has been mentioned in the election petition regarding any
of the corrupt practices adopted by the respondent or his election
agent or his volunteer. It is submitted that none of the provisions
of Section 123 of the R.P. Act is applicable. It is submitted that no
case of doing any corrupt practice is made out in this election
petition by the election petitioner.
11. Learned counsel for the respondent has relied upon the
judgment reported in AIR 1990 SC 1731 (Lalit Kisore Chaturvedi
vs. Jagdish Prasad Thada and Ors.) and submitted that in the
above case, even after publishing the poster by the candidate of
one political party against the candidate of other political party, the
Hon‟ble Supreme Court had not found for doing any corrupt
practices.
It is submitted that in the above case, there were serious
allegations and aspersions were cast/made upon the election
petitioner against the winning candidate and also serious
allegations were made against one political party by printing and
publishing the pamphlet, yet the Hon‟ble Supreme Court held that
no such case of corrupt practices was made out.
12. It is further submitted that petitioner has not made any
complaint before the Returning Officer regarding the corrupt
practices made by the Respondent or his volunteers at any time on
the date of election or even before publication of the result on
23.12.2019.
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It is further submitted that there is no evidence to show that
the respondent has distributed pamphlet to any person or through
his any agent and hence, in view of the above, this election petition
is not maintainable.
13. It is submitted that even as per Rule 25 of Conduct of
Election Rule, no affidavit has been filed in terms of Form-25. It is
submitted that election petition should be decided like a criminal
trial and the trial starts from the date of filing of election petition.
It is submitted that vague allegation has been made out against the
respondent and this Court may not consider the wide allegations
made by the petitioner against the respondent for distributing the
pamphlet. It is submitted that neither the name of the owner of
Lucky Printing Press nor the city of press nor the place of the press
has been mentioned by the petitioner in the election petition. It is
submitted that petitioner has secured only approx. sixteen (16)
hundred votes whereas respondent has secured more than sixty-
one thousand (61,000) votes.
14. It is submitted that respondent had filed Written Statement as
per Order VIII Rule 1 of the C.P.C and also in the light of the
judgment reported in 2005 (4) JLJR 1 (SC) (Kailash vs. Nanhku
and Ors.). It is submitted that Written Statement of the respondent
is deemed to be admitted and accepted in view of the judgment
reported in 2005 (4) JLJR 53 (SC) (Smt. Rani Kusum vs. Smt.
Kanchan Devi and Ors.).
15. It is submitted that a Co-ordinate Bench (Hon‟ble Mr. Justice
Gautam Kumar Choudhary) of this Court vide order dated
18.07.2022 had permitted the respondent to file his Written
Statement and thus, the Written Statement of the Respondent is
properly filed after the order passed by the Co-ordinate Bench. It is
submitted that the Respondent had filed his Written Statement on
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12.10.2022 within time. Thereafter, the Co-ordinate Bench
(Hon‟ble Mr. Justice Gautam Kumar Choudhary) vide order dated
04.11.2022 has settled the issues. It is submitted that in view of the
judgment reported in 2004 (2) JLJR 604 (Narayan Chandra
Mahto vs. Suraj Mahto and Ors.), it is well settled that Written
Statement can be accepted even after delay of eight years.
16. Learned counsel for the respondent submitted that there were
more than two lakhs voters in Nala Assembly Election
Constituency in which the petitioner had secured only approx 1700
(seventeen hundred) votes whereas this respondent had secured
61356 votes and the margin of vote is very high to disbelieve the
case of the petitioner and relied upon the judgment passed in E.P.
No.02 of 2014 passed by the Co-ordinate Bench of this Court and
which was affirmed by the Hon‟ble Supreme Court.
17. Further in support of his contention, learned counsel for the
respondent has relied upon the judgment reported in AIR 1985 SC
89 (Surinder Singh vs. Hardial Singh and Ors.) at para 34, 39
and 45 and submitted that corrupt practices has to be proved in this
election petition like the criminal trial and mere suspicion cannot
show the proof of committing the corrupt practices.
It is further submitted that petitioner has made complaint
before the Election Commission of India in the year 2020 only
after the result was declared on 23.12.2019 and there is no proof
that any voter complained before the Deputy Commissioner,
Jamtara or before the Returning Officer.
18. It is submitted that P.W-3-Surendra Kumar, who was the
Returning Officer of said 2019 08-Nala Assembly Election has
clearly stated during the evidence that no complaint was received
from the petitioner on the date of election regarding any corrupt
practices. It is further submitted that even the petitioner had filed
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representation before the Deputy Commissioner, Jamtara on
22.12.2019 but he has failed to show the photo copy of EVM
sample which was enclosed with the application dated 22.12.2019
filed by the petitioner before the Deputy Commissioner, Jamtara. It
is submitted that even the tainted source was not produced by the
petitioner.
19. Learned counsel for the Respondent further submitted that all
material facts have to be pleaded by the petitioner in his election
petition otherwise this case will fail and in support of his
contention, learned counsel for the Respondent has relied upon the
judgment reported in 2023 SCC OnLine SC 573 (Kanimozhi
Karunanidhi vs. A. Santhana Kumar and Ors.). It is submitted
that there is no personal allegation against the respondent and even
there is no personal allegation against the election agent of the
respondent for distributing the „Pamphlet or any „Purcha‟ or any
„Handbill‟.
20. It is further submitted that petitioner had stated during his
evidence that pamphlet was being distributed but he had not stated
that pamphlet was being distributed either by the Respondent
himself or by the election agent or by his party workers rather he
has merely stated that some volunteers of JMM were distributing
the disputed pamphlet i.e. Exhibit-01 (with objection) and had
produced the photographs of some person marked as Exhibit02
(with objection). However, the persons who are seen in Exhibit-02
(with objection) are neither the volunteers of JMM nor they were
employed for by the respondent or by the election agent of the
respondent. The petitioner has made casual statement by merely
blaming corrupt practices by the respondent but he had failed to
substantiate the charges against the respondent during his
evidence. It is further submitted that the petitioner even during
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cross-examination, has himself stated that he himself had not seen
the respondent and his agent for distributing purcha or pamphlet.
21. It is submitted that P.W-2 is Umesh Murmu who was the
Election Agent of the petitioner and although he also stated that
pamphlet was being distributed but he could not say the name of
the boy, who had informed him about the distribution of pamphlet
nor could he say the name of the parents of the boy of his village.
Thus, the evidence of P.W-2 is also not reliable.
It is submitted that apart from P.W-1 and P.W-2 namely
Santosh Hembram and Umesh Murmu, no witness has been
examined on behalf of the petitioner to substantiate the election of
corrupt practices allegedly made by the respondent. It is submitted
that the petitioner had not examined any co-villagers or any other
person of his voting area to substantiate his claim against the
respondent.
22. It is submitted that P.W-3 was the Returning Officer and who
has been examined as P.W-3 on behalf of the petitioner but, even
said P.W-3 has not stated anything against the respondent for
doing any corrupt practices. Even the petitioner had not filed any
complaint before him. Thus, the evidence of P.W-3 supports the
case of the respondent.
23. It is further submitted that R.W-1 to R.W-8, namely
Janardhan Bhandari, Jaydhan Hansda, Binod Raut, Sadhucharan
Mahto, Manoranjan Hansda, Musuhy Marandi, Kali Pada Murmu
and Sona Yadav respectively have fully supported the case of the
respondent and they have clearly stated in their evidence that they
had neither seen the pamphlet i.e. Exhibit-01 (with objection) nor
the persons shown in photograph of Exhibit-02 during the election
campaign. They had denied the existence of Exhibit-01 and
Exhibit-02 completely. Even the petitioner had not cross-examined
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proper whereas on the point of distributing the said Exhibit-01 and
Exhibit-02. Although R.W-1 to R.W-8 respectively are the
volunteers of JMM and the respondent but they had completely
denied the distribution of such pamphlet. Thus, the claim of the
petitioner is ill founded. It is submitted that R.W-9 is the
Respondent himself and who has stated that he had not made any
corrupt practices during the election campaign. The respondent has
completely denied for distributing the pamphlet (i.e. Exhibit-01)
and has denied the existence of JMM volunteers or his volunteers
in Exhibit-02 (with objection). The respondent has stated that he
has got his election materials pamphlet, purcha and handbill got
printed from „Bharat Traders‟ Press, Ranchi. He had also even
obtained the necessary permission for hiring the Vehicle and he
was not confronted that he had employed any person to distribute
the pamphlet (i.e. Exhibit-01) during his election campaign. Thus,
R.W-9 has fully supported his case and he has won earlier also two
elections earlier also prior to this election in which he has been
declared Returned Candidate and he was a candidate for last
several years whereas the petitioner has contested this election for
the first time in the year 2019. Even the petitioner could not secure
the vote of Scheduled Tribe people.
24. It is submitted that R.W-10, R.W-11 and R.W-12 namely
Shrawan Kumar Yadav, Ashok Kumar Mahto and Dayamay
Ghosh have supported the case of the respondent that they had
neither seen the pamphlet nor the persons shown in Exhibit-02. It
is submitted that R.W-10 is the Election Agent of the petitioner
and who was maintaining the entire Expenditure Register and even
he had not distributed any pamphlet during the election campaign
of the respondent.
19
25. Learned counsel for the respondent further submitted that
petitioner has not pleaded and proved his case as per para-17 of the
election petition. He has named three witnesses i.e. Prem Kumar
Hembram, Umesh Murmu and Priya Ranjan Baski in the election
petition that they had informed the petitioner regarding distribution
of Exhibit-01 (i.e. the pamphlet) in their villages but the petitioner
has examined only Umesh Murmu as P.W-2. Thus, the petitioner
has failed to examine said Prem Kumar Hembram and Priya
Ranjan Baski in support of his case which is a lacuna in this
election petition and hence this election petition is not
maintainable.
26. It is further submitted that Exhibit-A is the Voter List of 08
Nala Assembly Constituency which reveals that there is approx
around 2 lakhs votes and as per said Exhibit-A, in the related
disputed Booth Nos.91 and 92 (Patanpur Booth) the petitioner had
secured three (03) votes and one (01) vote respectively in Booth
Nos.91 and 92, whereas the respondent had secured 111 and 255
votes in said Booth Nos.91 and 92 respectively. It is submitted that
another concerned booth for which the petitioner has raised
concern, is Booth No.208 at village Jabardaha, Booth No.247 at
village Jaspur and Booth No.324 at village Jhantipahari, but the
petitioner has secured only eleven (11) votes, thirteen (13) votes
and three (03) votes in said Booth Nos.208, 247 and 324
respectively whereas the respondent has secured 395, 460 and 140
votes respectively in said Booth Nos.208, 247 and 324
respectively. Thus, the Returned Candidate has secured altogether
1521 votes out of 2764 votes in said booths for which the
petitioner has raised much hue and cry. Thus, there is no violation
of any provisions of Section 100(1) (b) of the Representation of
People Act by the respondent. It is submitted that even if for the
20
sake of argument, though not admitting the same, it is assumed
that the respondent had got distributed said pamphlet, then also it
had not affected materially the result. It is submitted that there is
no personal allegation against the petitioner in the said pamphlet
(i.e. Exhibit-01) at the instance of the respondent.
27. It is submitted that Exhibit-C is the Chart prepared by the
Returning Officer as per guideline of the Election Commission of
India and it reveals that 32 complaints were dealt with and
disposed of by the Returning Officer. It is submitted that Exhibit-C
is admitted (on admission) by both the sides and thus there is no
complaint seen by the Returning Officer in the said Exhibit-C.
It is submitted that Exhibit-D to Exhibit-D/14 respectively
are the Letter dated 06.12.2019 to 20.12.2019 sent by the District
Election Officer-cum-Deputy Commissioner, Jamtara to the Chief
Election Officer-cum-Secretary, Jharkhand, Ranchi which is report
with regard to Model Code of Conduct and relating to Law and
Order in Vidhan Sabha General Election, 2019, which reveals that
no complaint was made by the Election Petitioner against the
Respondent during said period.
It is submitted that Exhibit-D/9 is the report dated
15.12.2019 and Exhibit-D/10 is the report dated 16.12.2019
prepared by the Deputy Commissioner, Jamtara which also reveal
that no complaint was received from the petitioner and thus no
complaint was made by the petitioner before the competent
authority on 15.12.2019 and 16.12.2019 which he has alleged in
the election petition.
It is submitted that Exhibit-DD-I, DD-II are the reports of
Flying Squad Team Report of Booth No.193 to 332 & also for the
Booth No.1 to 96 both dated 03.07.2024 from which it is evident
that no complaint was made by the election petitioner even by the
21
Flying Squad Team otherwise it would have been marked and
reported in their said reports.
28. It is further submitted that Exhibit-DD-III is the report of
Sector Magistrate dated 04.07.2024 for Booth No.247 which
shows that no complaint was received. Similarly Exhibit DD-IV is
the report of Sector Magistrate dated 04.07.2024 in support of
Booth No.208 which shows that no complaint was made before the
Sector Magistrate by the petitioner.
Likewise, DD-V is the report of Sector Magistrate for Booth
No.91 and 92 dated 04.07.2024 which also shows that no
complaint was received before the Sector Magistrate by the
petitioner.
29. It is further submitted that Exhibit-F series is the report of
one Vulnerability Mapping whereas the Nomadic Tribes and
Scheduled Tribes people and reside and the report at Serial No.17,
22 and 23 reveals that no complaint was received for intimidating
those people.
30. It is submitted that Exhibit-G and G/I are the diary of the
Presiding Officer dated 20.12.2019 in support of Booth No.91 and
92 and it reveals from Serial No.21, 24 and 27 that neither any
election crime was conducted nor any complaint was made by any
candidate and peaceful voting was done. It is submitted that
Exhibit-H and H/1 are the visit sheets of the District Election
Officer dated 20.12.2019 and 20.12.2019 for Booth No.91 and 92
and which also show that no complaint was received from anyone
and even no complaint was made by any candidate.
It is submitted that the petitioner had filed I.A. No.10550 of
2023 dated 08.12.2023 and which was disposed on 08.12.2023 by
this Court by which documents mentioned at Serial No.1 to 7 were
called for by this Court and which include the documents of the
22
respondents. Thereafter the said documents were received from the
Returning Officer and the Returning Officer has also furnished the
Expenditure Register of the Respondent and which further reveals
that the Respondent got printed election materials from „Bharat
Traders‟ Press, Ranchi but does not show the name of „Lucky
Printing‟ Press. Even Expenditure Register of the Respondent
would show that neither pamphlets nor the handbills were printed
by the Respondent from „Bharat Traders‟ Press.
31. It is submitted that petitioner has not impleaded „Lucky
Printing‟ Press as party respondent and no person from Lucky
Printing Press has been examined, thus, the onus was cast upon the
petitioner to prove its case that the respondent got printed the
disputed Exhibit-01 (with objection) from said Lucky Printing
press.
32. It is further submitted that Exhibit-01 and Exhibit-02
are not the primary documents and particularly Exhibit-02
(marked with objection) was printed form the mobile and is a
category of electronic record and therefore, it was required to be
proved under the provisions of Section 65-B of Indian
Evidence Act and the certificate of the petitioner or the concerned
shop was not produced. Thus, Exhibit-02 (marked with objection)
cannot be relied upon in the light of the judgment reported in
(2020) 7 SCC 1.
33. It is further submitted that there is contradiction in the
pleading and evidence of witnesses of the Election Petitioner. It is
submitted that para 14 of election petition reveals that the
petitioner got printed Exhibit-02 from his mobile. However, while
examined as P.W-1, the petitioner during his cross-examination at
Paragraph Nos.44, 45 and 46 stated that he does not know about
Camera from which photographs were printed and he is not aware
23
of expenditure of printing the Exhibit-01 and Exhibit-02. He also
stated at para 46 that he was present at Patanpur with P.W-2
Umesh Murmu on 16.12.2019. However, P.W-2 during his cross-
examination, at para 34 had stated that he does not remember
when he had gone on the date of voting and he is not aware when
he accompanied with the petitioner. Thus, the evidence of P.W-1
and P.W-2 are contradictory to the para 14 of the election petition.
It also appears that para 17 of the election petition states about the
date when the petitioner visited the disputed place. However,
P.W-1 (i.e. the petitioner) during his cross-examination at
paragraph 64 admitted to have not made any complaint before the
Returning Officer. Even P.W-2 during his cross-examination at
Paragraph nos.26, 29 and 33 stated that he is not aware of the
name of the child from which he learnt about the pamphlet
(Exhibit-01) and he is also not aware about the parents of said
child.
Similarly at Paragraph nos.47, 48, 53 and 72 the petitioner
stated that he had not given the details of expenditure of photo
print in the office of District Election Officer. He had also not
made any complaint before the Presiding Officer and Security
Personnels about the Pamphlet of NOTA who were present there
and he submitted written complaint on 22.12.2019. Even people of
other party had not made any complaint before him regarding the
Pamphlet which were being propagated by the Candidate of JMM.
34. It is further submitted that P.W-3 is the Returning Officer
who was examined by the petitioner after summoning him through
the process of Court and he has also stated that he has not received
any complaint from the petitioner and there was no complaint in
writing.
24
It is submitted that petitioner has not pleaded anywhere in
the election petition that he had moved to 22 voting places on the
date of election.
35. It is further submitted that the respondent has filed his
Written Statement after permission of the Court and thereafter the
issues were framed on 04.11.2022 by the Co-ordinate Bench of
this Court on the basis of Written Statement filed by the
Respondent. Even various I.As were filed on behalf of the
respondent by relying upon the averments of the Written Statement
and thus it cannot be said that the Written Statement was not
accepted. It is submitted that in view of the judgment reported in
(2001) 8 SCC 233 (Harishankar Jain vs. Sonia Gandhi), the
petitioner has not made positive statements for the period he has
challenged the distribution of pamphlets and purcha and in absence
of the positive statements, the claim of the petitioner is not tenable.
36. It is further submitted that no voter of the petitioner turned
up for giving evidence before this Court in favour of the petitioner
and thus, the petitioner has failed to prove that any voter was
influenced by the respondent by distributing the pamphlet (marked
as Exhibit-01). It is submitted that even no independent witness
was examined by the petitioner regarding distribution of pamphlet
(Exhibit-01) and also regarding Exhibit-02. It is further submitted
that petitioner got zero votes in sixteen (16) booths and one (01)
vote each in nineteen (19) booths and he has also obtained only
two (02) votes and three (03) votes in several booths, which is
evident from Exhibit-A and which is the final result sheet and thus,
there is no valid cause of action for filing this election petition.
Hence, this election petition may be dismissed.
37. The petitioner in his reply submitted that the Written
Statement of the respondent was not accepted by this Court till
25
date and he has filed I.A No.8791 of 2022 along with petition
under Section 148 C.P.C for extension of time for accepting his
written statement. It is submitted that in view of the judgment
reported in the case of Smt. Rani Kusum vs. Smt. Kanchan Devi
and Ors. reported in (2005) 4 SCC 53 (SC) the Written Statement
cannot be permitted to be filed beyond the statutory period of 60
days + 60 days=120 days. However, the respondent has filed his
Written Statement after much delay.
38. It is submitted that in view of the judgment in the case of
(Jamuna Prasad Mukhariya and Ors. vs. Lachhi Ram and Ors.)
reported in AIR 1955 (1) SCR 608, the Hon‟ble Supreme Court
has held that election can be declared void if a single vote has been
obtained by the Returned Candidate by corrupt means by
influencing and committing fraud with the voter.
39. It is submitted that in absence of pleading, no document can
be relied upon by the respondent and in support of the same,
learned counsel for the petitioner has relied upon the case of Biraji
Alias Brijraji and Anr. vs. Surya Pratap and Ors reported in
(2020) 10 SCC 729. Thus, this election petition must be allowed.
40. Perused the records of this case and considered the
submission of both the sides.
41. This Election Petition was filed on 04.02.2020 and it was
admitted on 09.12.2021 by a Co-ordinate Bench (Hon‟ble Mr.
Justice Anil Kumar Choudhary) of this Court and notice was
issued upon the sole respondent by Registered Post with A/D as
well as under the Ordinary process. However, the Respondent had
not appeared and thereafter notice was published in the newspaper
in the light of order dated 18.04.2022. Thereafter, the respondent
appeared on 18.07.2022 and he was permitted to file Written
Statement although earlier ex-parte proceeding was drawn against
26
him vide order dated 06.07.2022 by another Co-ordinate Bench
(Hon‟ble Mr. Justice Gautam Kumar Choudhary) of this Court.
42. It transpires that the respondent has filed Written Statement
on 12.10.2022 along with petition under Section 148 C.P.C
seeking extension of time for filing Written Statement by I.A.
No.8791 of 2022 and had not filed any document in support of its
case. However, the above I.A. No.8791 of 2022 was not pressed
during the argument.
43. Thereafter, the issues were framed by the Co-ordinate Bench
(Hon‟ble Justice Gautam Kumar Choudhary) on 04.11.2022 which
are as follows:-
―1.Whether the election petition in its present form is
maintainable?
2. Whether Election petitioner has valid cause of action for
filing the election petition?
3. Whether the sole respondent, or his polling agent has
committed any corrupt practice as stated in Election Petition?
4. Whether the election result of the sole Respondent is liable
to be set aside?
5. Whether the election petitioner is entitled to any relief?‖
44. The petitioner in support of his case, has got examined three
(03) witnesses, who are as follows:-
(i) P.W-1 is Santosh Hembram (i.e. the petitioner)
(ii) P.W-2 is Umesh Murmu and
(iii) P.W-3 is Surendra Kumar (i.e. the Returning Officer)
45. The petitioner in support of his case, has got marked and
proved the following documents as the Exhibits, which are as
follows:-
(i) Exhibit- 1is Original copy of pamphlet (Marked with
objection),
(ii) Exhibit-2 is photograph downloaded from the phone of the
petitioner (Marked with objection),27
(iii) Exhibit-3 is the Nomination paper of Santosh Hembram in 14
sheets (Marked with objection) which was issued vide dated
29.11.2019 by the Election Officer and
(iv) Exhibit-4 is the Caste Certificate dated 11.01.2019 (Marked
with objection) of Santosh Hembram issued by Block Officer,
Jamtara
46. The petitioner in support of his case, has got marked and
proved the following documents for his identification, which are as
follows:-
(i) Document – X is Form 7 K enclosed as Annexure-4 in the writ
petition,
(ii) Document -X/1 is Complain Letter dated 22.12.2019 sent by
the petitioner to D.C, Jamtara,
(iii) Document -X/2 is Form 7 K received from the Returning
Officer, 08 Nala Assembly Constituency,
(iv) Document -Y is Form 8 (blank form),
(v) Document -Y/1 is Form 10 (blank form),and
(vi) Document -Y/2 is Form 18 (blank form)
47. The respondent in support of his case, has got examined
twelve (12) witnesses, who are as follows:-
(i) R.W-1 is Janardhan Bhandari,
(ii) R.W-2 is Jaydhan Hansda,
(iii) R.W-3 is Binod Raut,
(iv) R.W-4 is Sadhucharan Mahto,
(v) R.W-5 is Manoranjan Hansda,
(vi) R.W-6 is Musuhy Marandi,
(vii) R.W-7 is Kali Pada Murmu,
(viii) R.W-8 is Sona Yadav,
(ix) R.W-9 is Rabindra Nath Mahto (i.e. the Respondent),
(x) R.W-10 is Shrawan Kumar Yadav,
(xi) R.W-11 is Ashok Kumar Mahto and
(xii) R.W-12 is Dayamay Ghosh.
28
48. It transpires that the evidence of the petitioner was closed
on 14.12.2023 and even the evidence of the respondent was closed
on 02.05.2024.
49. However, in the light of the observation passed by Hon‟ble
Supreme Court in Special Leave to Appeal (C) No(s).4574 of 2024
which was dismissed on 26.02.2024 with certain observations, the
respondent had filed I.A. No.1830 of 2024 for examining five (05)
official witness and 33 other witnesses. However, this Court had
permitted the respondent to examine twelve (12) witnesses out of
thirty three (33) witnesses later on, on payment of cost of
Rs.10,000/- (Rs.Ten Thousand) to the petitioner.
During pendency of this case, the respondent had filed I.A.
No.9613 of 2023 under Order VII Rule 11 read with Section 151
C.P.C on the question of maintainability of the present election
petition. However, this Court vide order dated 19.01.2024 had
rejected the said I.A. No.9613 of 2023. Thereafter the respondent
had moved before the Hon‟ble Supreme Court by filing Special
Leave to Appeal (C) No(s).4574 of 2024 which was dismissed on
26.02.2024 with the following observations:-
―Para-3:-The Special Leave petition is accordingly,
dismissed.
Para-4:- It goes without saying that the petitioner shall be
at liberty to raise all contentions before the High Court at
an appropriate stage, which shall be considered by the
High Court on its own merits and in accordance with law
without being influenced by the decision made herein.‖
50. Thus, thereafter the respondent has examined twelve (12)
witnesses in support of his case.
51. The following documents were marked as the Exhibits (on
Admission of both the sides) on 28.10.2024 on behalf of the
Respondent, which are as follows:-
29
(i) Exhibit-A (on admission of both sides) is the Final Result
Sheet in Form 20 of the General Election 2019,
(ii) Exhibit-B to Exhibit- B/9 (on admission of both sides)
respectively are the Voter Facilitation Posters and its details
as displayed by the District Election Officer-cum-Deputy
Commissioner, Jamtara, especially in the Polling Stations,
(iii) Exhibit-C (on admission of both sides) is the list of
complaints received through the „c-VIGIL‟ Application,
(iv) Exhibit-D to Exhibit-D/14 (on admission of both sides)
respectively are the Letter dated 06.12.2019 to 20.12.2019
sent by the District Election Officer-cum- Deputy
Commissioner, Jamtara to the Chief Election Officer-cum-
Secretary, Jharkhand, Ranchi which is report of Model Code
of Conduct and relating to Law and Order in Vidhan Sabha
General Election, 2019,
(v) Exhibit-DD series (on admission of both sides) respectively
are the Letters No.02 & 03 dated 03.07.2024 and Letter
No.07 dated 04.07.2024 submitted by Surendra Kumar, then
Additional Collector-cum-Returning Officer to Nikhil Saha,
Chandradeo Murmu and Anmol Amar Baba,
(vi) Exhibit-DD-I and DD-II (on admission of both sides)
respectively are the Flying Squad Report of Booth No.193 to
332 & Booth No.1 to 96 submitted to the then Returning
Officer, in original by Nikhil Saha, Chandradeo Murmu and
Anmol Amar Baba.
(vii) Exhibit-DD-III, DD-IV and DD-V (on admission of both
sides) respectively are the Letters of the Sector Magistrate,
i.e. Letter dated 04.07.2024 of Pawan Kumar Dubey, Sector
Magistrate, Sector 10, Letter dated 04.07.2024 of Dayanand
Jamuda, Sector Magistrate, Sector No.3, Letter dated
04.07.2024 of Dr. Anmol Amar Baba, Sector Magistrate.
(viii) Exhibit-E, E/1, E/2 and E/3 (marked on admission of both
sides) respectively are the Poll Day Report of Sector
Magistrate, namely Bishwanath Toppo, Dr. Md. Rizwan,
30
Dayanand Jamuda and Anmol Amar Baba in three (03)
sheets each.
(ix) Exhibit-F series (marked on admission of both sides) are the
summary of vulnerability and list of persons causing
vulnerability by the Returning Officer in seven (07) sheets.
(x) Exhibit-G and G/1(marked on admission of both sides) are
the Diary of Presiding Officer of Booth No.91 and Booth
No.92.
(xi) Exhibit-H and H/1 are the Visit Sheets of Booth No.91 and
92 by the D.E.O.
52. It further transpires that vide order dated 08.12.2022 a Co-
ordinate Bench (Hon‟ble Justice Gautam Kumar Choudhary) had
allowed I.A. No.10550 of 2022 filed on behalf of the petitioner to
call for certain documents as detailed in the application from the
office of 08, Nala Assembly Constituency for election of
Jharkhand State Assembly Election in the year 2019 for which
result was declared on 23.12.2019.
53. So far as the oral evidence of the petitioner is concerned,
P.W-1 is Santosh Hembram, who has filed this Election Petition
and has stated during his evidence that he has filed this Election
Petition with regard to 2019 Assembly Election. Last date of filing
nomination paper was 03.12.2019 and verification of nomination
paper was 04.12.2019 and the date of voting was fixed on
20.12.2019 and the date of declaration of final result was on
23.12.2019. He further stated that twenty (20) candidates including
the petitioner had filed their nomination paper from 08 Nala
Assembly Region and he had filed his nomination paper on
04.12.2019 and four nomination papers were rejected by the
Returning Officer and thus, only sixteen (16) candidates including
the petitioner had contested election. The petitioner has contested
election as an Independent Candidate, who was also allotted the
31
Serial No.7 ballot symbol and he was placed at Serial No.16 in
Form-7 and he was given „Balla‟ (i.e. Bat) as election symbol. The
Respondent-Rabindra Nath Mahto was at Serial No.7 and his
election symbol was „Tir-Kaman‟ (i.e. Bow and Arrow) from his
party Jharkhand Mukti Morcha (hereinafter referred to as „JMM‟
in short). He has proved photo of Form-7-K which was marked for
identification as X.
He further stated that on the date of election on 20.12.2019,
when he arrived at Booth No.91 and 92 during travelling at village
Patanpur then he was surprised to see that several volunteers were
sitting outside booth with Demo Machine of EVM and Posters and
some JMM volunteers were sitting with Posters. When he saw then
he found that „NOTA‟ was mentioned at Serial No.16, upon
which, he was surprised and took out photo from his mobile and
on enquiry the volunteers told that there will be damage of vote
and hence „NOTA‟ is mentioned at Serial No.16. Thereafter he
immediately rang from his mobile to the Election Observer but his
phone was not received. After completion of Election on
22.12.2019 he filed his written application by way of complaint
before the Deputy Commissioner, Jamtara and the petitioner had
made complaint that the respondent-Rabindr Nath Mahto and his
volunteers are making wrong propaganda on Serial No.16 and
„NOTA‟ has been mentioned at Serial No.16. He has proved the
copy of Purcha, having photograph of Rabindra Nath Mahto
(i.e. the Respondent) in which „NOTA‟ is mentioned at his Serial
No.16, said „Purcha‟ (i.e. Pamphlet) is marked as Exhibit-01 (with
objection). He has further proved the original copy of photo which
was taken by his mobile which has been marked as Exhibit-02
(with objection). He further proved the application dated
22.12.2019 marked as X/1 which was filed before the Deputy
32
Commissioner, Jamtara. He further proved photo copy of Form-7-
K, which was deposited before the Court of Returning Officer
showing his name at Serial No.16 and election symbol „Balla‟ and
his photograph and which is marked for identification as „X/2‟.
He further stated that the copy of Form-7-K, which was
given to him from election office of Returning Officer which is
marked as X/2 for identification, is completely different. He
asserted that Form-7-K which was issued by Returning Officer
does not contain his photograph.
He has further proved the photo copy of Nomination Paper,
in fourteen (14) sheets/pages which was issued by Returning
Officer on 29.11.2019 as Exhibit-3 (with objection). He has further
proved the photo copy of his Caste Certificate issued by S.D.O,
Jamtara on 11.01.2019 as Exhibit-4 (with objection).
54. He further stated during his evidence that the candidate of
Jharkhand Mukti Morcha had shown „NOTA‟ against Serial No.16
and it has been printed and distributed by Jharkhand Mukti
Morcha. He also belongs to Schedule Tribes category and he
comes from Santhal Tribes and he was the only Independent
Candidate from 08-Nala Assembly Constituency and due to their
wrong propaganda and conspiracy committed by them his
candidature has been damaged a lot. He asserted that during course
of election propaganda, he was informed by villager Prem Kumar
Rana of village Jhantipahari that wrong handbill was shown and
even it was propagated by JMM to give vote to Rabindra Nath
Mahto shown at Serial No.7 and the handbill showing Serial No.16
as „NOTA‟ and it was told that vote will be wasted at Serial No.16.
Similarly, the concerned villager Umesh Murmu of village Jaspur
informed him that similar propaganda was made house to house in
his village by showing demo that Rabindra Nath Mahto, candidate
33
of JMM is shown at Serial No.7. Even Umesh Murmu informed
that Jaydhan Hansda and Roopchand Hansda are propagating in
favour of JMM to give vote at Serial No.7 and further not to give
vote at Serial No.16 showing it as „NOTA‟.
Similarly, in the village Jabardaha he also learnt during his
election campaign that JMM volunteers Ramdeo Soren and Much
Marandi are propagating to vote in favour of Rabindra Nath Mahto
at Serial No.7 and Serial No.16 was shown as „NOTA‟ for not
giving vote.
He belongs to Schedule Tribe and his village is highly tribal
populated and due to this ill-conceived propaganda, his votes have
been damaged a lot.
56. During cross-examination, he stated to have contested the
election for the first time and he is an agriculturist by profession.
However, he has not pointed out name of any villager for
propagating his election but he has himself propagated at 332
booths of Vidhan Sabha Region and he has deposited entire cost of
his election but he does not remember the details of cost.
He further stated that Umesh Murmu was his Polling Agent
and he had given details of his Polling Agent on the form received
from the office of Returning Officer. He had also got printed
handbills in thousands but does not remember the exact number
and he also does not remember as to whether the copy of the said
handbill was given to the District Retuning Officer or not. He had
also appointed four counting agents after taking letter of right from
Returning Officer. However, he is not aware of starting time of
counting but he was present at the time of declaration of result.
He admitted to have received only 1769 votes during
counting and he had received zero votes from three booths.
34
He has denied the suggestion for receiving zero votes from
ten polling booths but admitted that he has received 1-1 vote each
from ten Polling Stations.
He admitted to have not mentioned the fact of taking
photograph from camera during his election campaign. However,
he got printed the copy from the computer in the market but he has
not mentioned the name of said shop and not produced the receipt
of print.
He arrived at village Patanpur at 3.00 p.m and his bodyguard
and polling agent Umesh Murmu had accompanied with him.
He admitted to have not made any complain before Presiding
Officer of polling booth with regard to pamphlet showing NOTA
and had not complained to any security persons.
He had not made any complain before local police station
which was situated at a distance of 7-8 Kilometer from Patanpur
village to the effect that JMM people were distributing pamphlets
of NOTA. He had not enquired about the name of such person
distributing pamphlet of NOTA. He had not raised any hue and cry
to enquire from people present there as to why this is happening.
He had not gone before the Presiding Officer on the date of
election of Polling Booth. No other Polling Agent except his
Polling Agent was present there.
Although he stated to have tried to make complain to the
Election Observer by telephone but his phone was not received by
them.
He admitted to have mentioned at para-19 of Election
Petition to have informed concerned Election Officer through
phone and also made written complaint in the office of the Deputy
Commissioner on 22.12.2019.
35
He admitted that the Additional Collector was the Returning
Officer and he had made written complaint on 22.12.2019 and
copy of written complaint is enclosed with the Election Petition.
57. On being pointed out by the respondent‟s counsel that copy
of acknowledgement is not enclosed with Election Petition, the
petitioner fails to remember it. However, on being shown Election
Petition, the witness states that acknowledgement of information
of written complaint is enclosed with this Election Petition.
The witness on his own says that the copy of written
complaint was placed before employees (office of D.C) present
there. He admitted to have not mentioned printing of NOTA by
volunteers of JMM at his Serial No.16 in Annexure-7 of this
Election Petition.
He stated that he had also complained before Election
Commission, New Delhi against mis-propaganda of JMM Party by
E-mail but failed to show the date of E-mail.
On being pointed out by the respondent‟s counsel in his
Election Petition, he admitted that E-mail was sent on 04.02.2020
and name of any candidate has not been mentioned in the E-mail
and copy of complain is not enclosed with this Election Petition.
During further cross-examination, he stated to have left his
house at 7.00 a.m. in the morning on 20.12.2019 on the date of
election. Firstly, he arrived at Booth No.313 where he had to cast
his vote situated at Primary School, Maheshmunda at his Voter
Serial No.606 where he stayed for around half an hour and then he
went to look into booth agents. He also admitted that there was no
NOTA pamphlet on his booth. Thereafter he travelled at about 20-
22 Polling Booths but apart from Patanpur Polling Booth, no
NOTA pamphlet was seen at any other booth.
36
He could not remember the date on which the villagers Prem
Kumar Hembram of Village Jhantipahari informed him that wrong
handbill was shown where election campaign was done. Prem
Kumar Rana is actually Prem Kumar Hembram and about two
days ago prior to election he had informed about the above
election campaign but he had not made any complain before any
Election Officer.
He also admitted that although Umesh Murmu had informed
him in the night of 16.12.2019 regarding NOTA election campaign
but said Umesh Murmu had not made any complain anywhere. He
had also not asked to his Election Agent Umesh Murmu to make
any complain from village Jashpur.
He stated that the villager Priya Ranjan Baski of village
Jabardaha had complained of pamphlet of NOTA during election
campaign by JMM candidate but despite having knowledge of this
fact on 17.12.2019 from villager Priya Ranjan Baski, he had not
made any complain in writing anywhere.
He stated that the voting was disturbed at village Jashpur
Polling Booth as there was no line and even people of other parties
had complained before Election Officer regarding light and voting.
He had no seen any NOTA pamphlet at Jaspur at around 3.40 p.m.
on the date of election.
He admitted that Prem Kumar Hembram, Priya Ranjan Baski
and Umesh Murmu were neither his election campaigner nor his
volunteers. However, he had not complained regarding NOTA
against JMM candidate except Election Observer. He admitted to
have only 15-20 volunteer but he had not paid any amount to his
volunteer to meeting his expenses.
On being shown Annexure-6 (photo), the witness admits that
there is no flag and banner of any party. He admitted to have taken
37
only one photograph. He admitted that no background is seen at
the time of taking photograph and even the place of photograph is
not visible. He has not given any certificate with regard to said
photo Enclosure-6 to the effect that said photo was taken by him.
He admitted that apart from him, two persons Mahadeo Kisku and
Pushpa Soren were also Scheduled Tribes candidates and even one
Kanhai Chandra Malpaharia was Scheduled Tribe candidate.
He stood at 7th place in order to merit in the election result
after the voting. He had received only 49 votes at his Booth
No.313 but he does not remember the total number of voters of
said booth. He admitted to have not complained of any pamphlet
of NOTA at Booth No.313.
He is also not aware as to how many votes JMM candidate
Rabindra Nath Mahto had obtained. However, he has received
maximum vote from Booth No.313. He admitted his signature on
Annexure-5 and Annexure-6 but having not mentioned anywhere
“attested to be true”. He admits that original Signature and Muhar
of Oath Commissioner are not seen in those Annexure-5 and
Annexure-6 or at any other annexures. He denied the suggestion
that Annexure-5 and Annexure-6 are manufactured documents. He
denied the suggestion for not having seen any pamphlet of NOTA
during his election campaign.
58. Thus, from scrutinizing the evidence of P.W-1, it would
appear that he has tried to support his case and he has stated
regarding distribution of pamphlet and handbill showing NOTA at
Serial No.16 which was being distributed by the volunteers of
JMM. He has even named three villagers Prem Kumar Hembram,
Umesh Murmu and Priya Ranjan Baski for informing him for
distribution of handbill and pamphlet of NOTA at village
Jhantipahari, Jaspur and Jabardaha respectively but he failed to
38
examine said Prem Kumar Hansda and Priya Ranjan Baski.
However, his evidence will be again considered later on after the
evidence of other witnesses.
59. P.W-2 is Umesh Murmu, who has stated during his evidence
that the election was held in the year 2019, Rabindra Nath Mahto
(i.e. the Respondent) had got printed wrong pamphlets and it was
propagated during his campaign. He is the Election Agent of
Election Petitioner in the year 2019 and he had done the work
during the election as per direction of the petitioner. However, just
prior to election on 16.12.2019 while election campaigning was
done in his village then he saw that JMM volunteers namely
Jaydhan Hansda, Rupchand Hansda and some other unknown
volunteers were distributing pamphlets and apprising the people to
give their vote and they were also informing that NOTA is written
at Serial No.16 and casting vote on the same will be futile. He
claimed to identify the person who was distributing the pamphlet.
On being shown the pamphlet marked as Exhibit-2/5 (it was
corrected as Exhibit-1 vide order sheet dated 16.10.2024), he
stated that it was written that vote has to be casted in wining of
Rabindra Nath Mahto and it was also mentioned that NOTA at
Serial No.16 of pamphlet i.e. Exhibit-2/5.
60. During cross-examination, he admitted that he was the
Election Agent of the petitioner and he had also furnished his
Voter Card and Aadhar Card to the petitioner and who had issued
him certificate but does not remember as to who had granted said
certificate. He admitted to have received Identity Card. He could
not say the date of becoming Election Agent but stated that he
became the Election Agent probably from the date of scrutiny.
Election Agent is appointed for doing a work of candidate and he
used to furnish expenditure of the candidate. However, he shows
39
unawareness that the work done by the election agent is considered
to be work of the contesting candidate. He could not remember the
date of election campaign. However, he is acquainted with
permission of vehicle to the candidate for their election campaign.
His candidate had also taken permission of vehicle for the election
campaign and one Bolero Vehicle was taken by his candidate
during election campaign but he cannot tell the number. He denied
the suggestion that the candidate Santosh Hembram had not taken
Bolero Vehicle for his election campaign. However, Santosh
Hembram had also taken one Motorcycle for his election
campaign. They used to live separately during election campaign
but for 1-2 days they had jointly made election campaign.
He had casted his vote at village Jaspur in the Polling Booth
and he remained for the whole day in Jaspur. Although he had
heard the distribution of wrong pamphlet by JMM volunteers on
16.12.2019 on hearsay basis but later on, the witness himself stated
that he had himself seen that the wrong pamphlets were being
used. Even people of the village had informed him for distributing
wrong pamphlets but he does not remember the name of those
persons. He was shown pamphlet i.e. Exhibit-2/5 (it was corrected
as Exhibit-1) by a young child but he neither disclosed the name of
that child nor the parents of that child but the age of the child was
about 14-15 years. However, he had kept the said pamphlet with
himself and later on he had handed over the same to the petitioner
Santosh Hembram but cannot say the date of finding over
pamphlet. He was on telephonic discussion also with his candidate
but he had not informed him about the pamphlet by telephone. He
had also not made complain before any officer that wrong
pamphlet was being used by JMM candidate.
40
He admitted to have seen such type of pamphlet only at
village Jaspur on 16.12.2019 during his entire election campaign.
He further stated in para 33 of his evidence that one
pamphlet was given by one child to him but he had not seen said
pamphlet in whole, outside the house of any person of village
Jaspur. He could not remember on which booth he had moved on
the date of election on 20.12.2019.
However, he admitted to have not made any complain
regarding said pamphlet even after the election was over. He had
not ascertained as to said pamphlet was got printed by whom. He
is not aware of process of printing the pamphlet. He is also not
aware regarding complain made by any Voter before any officer
regarding said pamphlet.
He is not aware as to whether any case was instituted against
the Returned candidate-Rabindra Nath Mahto by any person,
Volunteer or Voter against the candidature of such person.
He further stated that in the pamphlet of NOTA, it has been
referred to vote only for Rabindra Nath Mahto.
However, he is not aware as to whether any pamphlet with
regard to election was got printed by his candidate (i.e. the
petitioner). He used to maintain the expenditure of his candidate.
However, he used to maintain the details of election expenses
made by his candidate and he used to maintain the details of
election expenses in the Register and which was verified in
Jamtara Treasury. However, he is not aware as to how much
expense was made by his candidate during the election but his
Candidate had called for Register after the election was over. He
could not remember regarding the number of votes obtained by his
candidate Santosh Hembram and he is also not aware about the
total votes received by the petitioner-Santosh Hembram. He is not
41
aware as to how many votes had been received by his candidate
Santosh Hembram in his booth. He has passed M.A (History) and
has little knowledge of computer also but he is not aware as to
whether photo shop was done by computer or not.
He denied the suggestion that pamphlet marked as Exhibit-
2/5 (it was corrected as the Exhibit-1 on 16.10.2024 vide order
sheet) of NOTA is a manufactured document.
61. Thus, from scrutinizing the evidence of P.W-2, it would
appear that he had supported the case of the petitioner and stated
that he had received the Pamphlet (i.e. Exhibit-01) from one child
aged about 14-15 years but he neither disclosed the name of said
child nor the name of the parents of said child. However, during
cross-examination, he asserted at para-26 and 33 to have received
the Pamphlet of NOTA from one child. The witness could not say
about the number of votes secured/obtained by the petitioner
Santosh Hembram although he was his election agent but he has
supported the case of the petitioner.
62. P.W-3 is Surendra Kumar, the Returning Officer on the date
of election of 08, Nala Assembly Constituency and he was posted
as Additional Collector, Jamtara on the date of his evidence before
this Court. P.W-3 stated during his evidence that he was posted as
the Returning Officer at 08-Nala Assembly Region and date of
filing nomination was fixed till 03.12.2019 at 3.00 noon and
twenty (20) persons had filed their nomination paper. However,
nomination paper of four (04) persons were rejected. The date of
election was fixed on 20.12.2019 and the date of counting was
fixed on 23.12.2019 and the counting started in the morning of
23.12.2019 and the result was declared in the night around 2.30-
300 a.m. during night hours and Rabindra Nath Mahato (i.e. the
Respondent) was the winning candidate. He admitted that the
42
petitioner Santosh Hembram was also a candidate of said election.
However, he could not state as to the date of submission of
concerned papers with regard to the election before the office of
the High Court but he had submitted again certain papers on
09.09.2023 with regard to election and he requested for showing
the date of submitting paper for refreshing his memory and which
was accepted by this Court and he was allowed to peruse the
papers.
The witness further stated that firstly he had submitted Letter
No.03/22.02.2023 in which he had submitted Nomination Paper,
Checklist of all documents of all sets of Sri Ravindra Nath Mahto,
Form-8 related with appointment of Election Agent related with
the Return Candidate Mr. Ravindra Nath Mahto which was
obtained by Nodal Officer-cum-Treasury Officer (i.e.Annexure-
52), Registers for maintenance of accounts of election expenditure
by contesting candidate as submitted by Returned Candidate Mr.
Ravindra Nath Mahto along with Result sheet of election of 08-
Nala, Assembly Constituency, Format 7K, list of candidates
contesting election 08-Nala, Assembly Constituency.
63. Thereafter he further submitted certain papers vide Letter
No.01 dated 09.09.2023 and the said letter was forwarded to
Deputy Election Officer, Jamtara vide Letter No.05 dated
02.09.2023. He also submitted that Letter No.248 G.NI/G.DI dated
04.09.2023 received from Deputy Election Officer, Letter
No.03/NIPKO, Returning Officer Cell dated 22.02.2023, Letter of
Cell of Nodal Officer-cum-Treasury Officer, Jamtara Accounts
Expenditure Cell, Letter No.410/Vyay Ko dated 26.12.2023, Letter
No.43/Election dated 26.12.2022, Section 127A restrictions on the
printing on pamphlets, posters etc., Letter No.03 dated 22.02.2023.
43
He also admitted to have committed mistake for not
depositing/furnishing the three (03) documents by him on the first
occasion before the Court and for which he tendered his apology.
He further stated that Document No.05 Printing Materials of
Returning Candidate was not in his custody because it was not
deposited before him.
He also admitted to have received Document No.04, which is
accounting of expenses of election and it was received by him on
26.12.2022 by Letter No.410 Vyay Kosang of Nodal Officer-cum-
Expenditure Accounts Cell (Vyay Lekha Kosang).
He also stated that he had no knowledge that the election
result has been challenged before this Court.
He also admitted to have seen the complaint petition of
Election Petitioner in the office of the learned Deputy
Commissioner, Jamtara which was enclosed with the Election
Petition.
64. During cross-examination, he stated that he had seen the
election petition in the office of Deputy Commissioner through his
learned counsel 2-3 months ago and he had seen the enclosed
papers of this election petition. He further stated that no complain
regarding pamphlet, which has been enclosed with this election
petition, was submitted in his office. He also stated during his
cross-examination that it is beyond his jurisdiction to entertain the
complain of any complainant. There is provision of submitting
complain with regard to wrong committed during election by way
of portal. He further stated that after initiation of election process
and till the declaration of election result any complaint can be
made/furnished before Model Code of Conduct. The evidence of
the witness was deferred on 06.12.2023 on account of the ailment
and request was made on behalf of the learned counsel for the
44
Respondent till 14.12.2023. He was again cross-examined on
14.12.2023 and then he stated at para 19 of his cross-examination
that no complaint was made before him by the Election Petitioner
with regard to wrong committed in the Pamphlet and neither his
election agent had made any complaint before him.
65. Thus, from scrutinizing the evidence of P.W-3, it is evident
that no complaint was made before him neither by the Election
Petitioner nor by his election agent during the time of election.
However, he admitted that he had committed mistake for not
submitting several papers before this Court on 22.02.2023 and
thereafter he had submitted paper before the office of this Court
again on 09.09.2023 after being issued show cause notice for not
submitting the papers. It is also evident that the result of the
election was declared in the night of 23.12.2023 at around 2.30-
3.00 hours.
66. R.W-1 is Janardhan Bhandari who stated during his evidence
that he is a volunteer of JMM and he is also Joint Secretary of
Nala Prakhand of JMM party. He had made election campaign in
favour of Sri Rabindra Nath Mahto, who was a candidate of JMM
during election of 2019 and had gone to several places. Various
candidates had got printed their pamphlets.
On being shown Exhibit-01 to the witness by the learned
counsel for the respondent, he stated that no such Pamphlet
(Election Purcha) was seen by him and Rabindra Nath Mahto (i.e.
the respondent) had not got printed this Purcha (i.e. Pamphlet). He
also stated that the Respondent-Rabindra Nath Mahto had obtained
61,165 votes whereas the Election Petitioner had obtained only
around 1700 votes. He had not heard the name of Santosh
Hembram (i.e. the petitioner) before election campaign or after the
election campaign.
45
67. During cross-examination, he admitted to be a volunteer of
JMM and resident of village Manihari, Booth No.209.
On being shown Exhibit-1 (i.e. the pamphlet with
photograph of respondent and Serial No.16 NOTA) he stated that
he had not seen any such Purcha during election campaign and
admitted that it contains photograph of respondent and Serial No.7
is mentioned. On being further shown Exhibit-01 by the learned
counsel for the petitioner, he stated that he is not aware of Hindi
and English and he is not aware that NOTA is mentioned at Serial
No.16 of said Exhibit-01. Although he had admitted that at Serial
No.7 the name of respondent-Rabindra Nath Mahto is mentioned
on the same Exhibit-01.
He remained at Booth No.209 on the date of voting from
9.00 a.m. till 4.00 p.m. but he was not the election agent of JMM.
He had casted vote between 8.30 a.m. to 9.00 a.m in the election of
2019. There was no arrangement for sitting at the booth on the
Voting Centre by his party (i.e. the JMM). He is not aware of
name of Santosh Hembram (i.e. the petitioner) even after
institution of this election petition.
68. Thus, from scrutinizing the evidence of R.W-1, it is evident
that he is a volunteer of JMM party and has denied the printing and
distribution of Exhibit-01 (i.e. the pamphlet by the Respondent)
during the election and he has supported the case of the
Respondent. However, during cross-examination, although he
admitted that the name of the respondent-Rabindra Nath Mahto
with photo is mentioned at Serial No.7 of said Exhibit-01 at para
12 of his cross-examination, but in para-13 of his cross-
examination, he again stated that he is not aware of Hindi and
English and also not aware that NOTA is mentioned at Serial
No.16 of the same Exhibit-01 when it was shown to him by the
46
learned counsel for the petitioner. He also admitted to have arrived
for evidence under the instruction of the respondent-Rabindra Nath
Mahto.
Thus, R.W-1 is a formal witness although he has supported
the case of the Respondent.
69. R.W-2 is Jaydhan Hansda who is the resident of Nala
Assembly Region and also Block Secretary of Nala Block of Nala
Assembly Region of JMM and stated that the Respondent
Rabindra Nath Mahto was authorized candidate of JMM for the
Assembly Election of the year 2019 and he used to remain with
him during the election campaign and there were several
candidates in the said election.
On being shown earlier Exhibit-01 by the learned counsel
for the respondent to the witness, he stated that such Purcha i.e.
Exhibit-01 was never distributed by them and he is seeing this
Exhibit-01 for the first time. He denied the claim of the election
petitioner that such pamphlet (Exhibit-01) was being distributed in
his village on 16.12.2019 neither by the him nor by any volunteer.
The claim of the petitioner is wrong that such pamphlet (Exhibit-
01) had been distributed by the respondent-Rabindra Nath Mahto
during his election campaign.
70. During cross-examination, he stated that he used to
campaign in the election by Mike and had held meeting at different
places with the people. However, he is not aware as to whether
they had campaign during election by poster, banner and handbill
or not. He was in his house on 16.12.2019 and had not gone
anywhere for campaign. He is permanent resident of the village
and identifies all people of his village and also identifies one
Umesh Murmu (i.e. P.W-2) belongs to his village.
47
He asserted that he was not doing election campaign on
16.12.2019 as his wife was restless and she was suffering from
Kidney disease and hence he had not gone for election campaign.
On being shown again Exhibit-1 by the learned counsel for
the petitioner, the witness admitted that name of Sri Rabindra Nath
Mahto (i.e.the respondent) is mentioned at Serial No.7 and NOTA
is mentioned at Serial No.16 of said Exhibit-1.
He was informed by Rabindra Nath Mahto (i.e. the
respondent) about six (06) months ago for giving evidence in this
case. He shows unawareness about printing of number of posters
by the respondent Rabindra Nath Mahto for election campaign
through JMM.
He is unaware with this Exhibit-01 was got printed by JMM
party.
71. Thus, from scrutinizing the evidence of R.W-2, it would
appear that he is the Block Secretary of Nala Block during election
campaign during 2019 Assembly election by the Respondent. He
admitted that Serial No.16 reveals NOTA whereas Serial No.7
contains the name of the Respondent-Rabindra Nath Mahto. He
admitted to be aware of his villager Umesh Murmu (i.e. P.W-2)
who had made specific complaint against this witness-Jaydhan
Hansda that he was distributing pamphlet (i.e. Exhibit-01) during
election campaign of the Respondent. Although he had denied
flatly that on 16.12.2019 he had not gone outside house for
election campaign.
Thus, from the evidence of R.W-2 it is evident that he has
refuted the assertion of the petitioner i.e. P.W-1 and P.W-2-Umesh
Murmu.
72. R.W-3 is Binod Raut, who stated during evidence that he
lives in Nala region and is a volunteer of JMM party and he had
48
worked for 5-6 days with Rabindra Nath Mahto during the election
campaign and the election was held on 20.12.2019. He was agent
on the date of voting and his role was to make the people aware of
voting and he was outside the booth situated at Primary School,
Patanpur and had remained there from 7.00 a.m to 6.00 p.m.
On being shown Exhibit-01 by the learned counsel for the
respondent, he stated to have not seen such document earlier. He
denied that Exhibit-01 (i.e. the Pamphlet) was being distributed by
the respondent on the date of voting. No candidate was present
before him on the date of voting and there were about 450 voters at
his booth.
On being shown earlier Exhibit-02 by learned counsel for the
respondent, the witness stated that neither such person was there
nor any person of JMM was in his booth. His candidate had
received more than sixteen thousand votes.
73. During cross-examination, he stated that apart from him, 2-3
other agents were present at his Booth No.91 at Patanpur. He
admitted that village Baghmara is adjacent to his village and JMM
volunteer Mani Shankar Mahto is volunteer of JMM at Bghmara
village but he is not aware that volunteer namely Binod Jha is
associated with JMM party or not. He was at a distance of 150
Meters from the booth on the date of voting during the election. He
was made booth agent by respondent-Rabindra Nath Mahto but he
does not remember whether he had filled up any form or not for
the said work.
On being shown formats of Form-8 (application for
correction to particulars entered in electoral roll), Form-10
(appointment of polling agent) and Form-18 (under rule 31
Election Commission of India, claim of inclusion of name in the
electoral for Graduate‟s constituency) he shows unawareness and
49
said forms have been marked for identification as Y, Y/1 and Y/2
respectively. He further admitted to be present at a distance of
approx. 150 Meters from the booth on the date of voting during the
election and because there was one another polling agent near his
polling booth and on the date of election several people were going
to the second booth also apart from his booth and therefore, in
order to make them aware he was at a distance of 150 Meters from
the booth. However, he had not asked to any voter as to whom
they have to give vote to which party. He admitted that
respondent-Rabindra Nath Mahto had asked him to become his
booth agent but he is not aware as to by whom he had been made
the booth agent.
He was sitting on Dari (i.e. Mattress) on the date of voting
and he was keeping the flag of the party and he was having the
Voter List. However, he had not kept the handbill. He is
acquainted with the respondent candidate Rabindra Nath Mahto
for the last 20 years. He asserted to have not done any work from
the MLA fund of respondent-Rabindra Nath Mahto.
74. Thus, from scrutinizing the evidence of R.W-3-Binod Raut,
it would appear that he has supported the case of the Respondent
and he claimed to be simple volunteer of JMM party. However, he
remained present throughout on the date of voting from 7.00 a.m.
to 6.00 p.m. on 20.12.2019 with the Voter list of his booth and was
sitting at a distance of approx 150 Meters to make the people
aware of not only his booth but also regarding other booth which
was adjacent to his booth and he was making the people aware.
75. R.W-4 is Sadhu Charan Mahto who admitted to be a
volunteer of JMM and has got connection with JMM party. He had
worked for his party candidate Rabindra Nath Mahto (i.e. the
respondent) in Assembly Election 2019 which was held in
50
December 2019. He has also done the election campaign by Mike
through the Bicycle but he had not distributed any paper etc. He
stated and asserted that his party had neither distributed pamphlet
or handbill.
On being shown Exhibit-1 by the learned counsel for the
respondent, the witness stated that he had not seen this Exhibit-1
or any paper like it since before. He had denied that this Exhibit-1
(pamphlet) was distributed by his candidate Rabindra Nath Mahto
or by any volunteer of JMM. The respondent-Rabindra Nath
Mahto had been declared elected from Nala Assembly Election in
the year 2019 and had secured more than Sixty Thousand votes.
He was outside Manjhladih booth on the date of election and on
that day none of the candidate had arrived at his booth.
76. During cross-examination, he stated that he is not in any post
of JMM but he was asked by the candidate for making his election
campaign. He used to go regions of Manjhaladih Middle School
Booth, Patnapur Booth and Fatehpur Booth for election campaign
but he was not paid any expenditure by the candidate for such
campaign. He had not gone to campaign by taking any handbill
and he used to campaign by Mike and people were aware that he
was campaigning for JMM party.
He also stated that neither his candidate nor any volunteer of
JMM had distributed any handbill.
On the date of polling, he was at a distance of 100-150 Meter
outside the booth and he remained there till 2.30 p.m. In para 16
and 17, he stated that he used to inform people for giving vote to
his candidate Rabindra Nath Mahto (i.e. the respondent) for JMM
and he knows only two candidates namely Rabindra Nath Mahto
and Satya Nath Jha. No candidate of any party had arrived at his
51
booth on the date of election. He is not aware about number of
candidates who had contested said election.
On being confronted by the learned counsel for the petitioner
as to how he claimed that no candidates had arrived at his booth,
when he identifies only two candidates, the witness gave evasive
reply by stating that no candidate had arrived at the booth.
He also stated to have come to give evidence on the
instruction of his candidate Rabindra Nath Mahto and he is doing
agricultural work.
77. Thus, from scrutinizing the evidence of R.W-4, it would
appear that he has flatly denied the distribution of Exhibit-1 (i.e.
the pamphlet) by any JMM volunteer or by any person. However,
during cross-examination, he admitted that he was present outside
the booth at the distance of 100-150 Meters on the date of polling
from the booth till 2.30 p.m and he used to influence the people i.e.
the villagers for giving vote in favour of the respondent-Rabindra
Nath Mahto for JMM.
78. R.W-5 is Manoranjan Hansda, who stated during evidence
that he had worked as volunteer of JMM during Assembly
Election of the year 2019 and he used to make election campaign
by taking flag through his Bicycle. He had not distributed any
pamphlet or flag. His party had also not distributed any pamphlet
or handbill. Assembly Election was held on 20.12.2019 and he had
also cast his vote at Primary School, Jaspur in the booth at around
12.00 noon but he had returned at around 2.00 p.m.
On being shown Exhibit-01 by the learned counsel for the
respondent, the witness stated that he had not seen any such paper
earlier.
52
He further stated that no papers like Exhibit-1 or pamphlet or
handbill were distributed by any person of JMM. It will be wrong
to say that such pamphlet was distributed in his village.
79. During cross-examination, he stated that he is volunteer of
JMM for last 20 years but he is not on any post and he is
acquainted with JMM candidate for last 20 years. He has come to
give evidence on the instruction of Respondent-Rabindra Nath
Mahto in this case, who had arrived in his village. Sometimes, he
used to attend meeting of JMM. Shyam Lal Hembram is a District
President of his party. He used to make campaign by Bicycle in his
village and had made campaign for 8-10 days prior to election and
no Mike was fixed at his Bicycle. He had not seen any handbill of
his party during election campaign.
80. Thus, from scrutinizing the evidence of R.W-5, it would
appear that he is a formal witness and he has given evidence under
the instruction of respondent Rabindra Nath Mahto who had
arrived at his village for instructing him to give evidence in this
case.
81. R.W-6 is Musuhy Marandi who stated during his evidence
that last election was held on 20.12.2019 and in that election he
asserted he along with JMM cadre people used to campaign at his
village Jabardaha. He along with his friends used to
make/propagate election campaign by taking flag and he is aware
of all persons of his village. However, he identifies only those
volunteers who had worked with him.
He is not aware of the volunteers namely Ramdeo Soren and
Much Marandi. He used to campaign by taking flag and sitting
with the respondent and the Respondent-Rabindra Nath Mahto is a
good person.
53
On being shown Exhibit-01 by the learned counsel for the
respondent, the witness stated that he had not seen this pamphlet
(i.e. Exhibit-01) like document earlier. It will be wrong to say that
pamphlet like this Exhibit-01 was distributed in his village on any
date. He had casted his vote on 20.12.2019 at his village and he
had not seen any document or pamphlet like Exhibit-01 (i.e. the
pamphlet). His candidate was declared elected in the election on
20.12.2019 and he had secured more than sixty one thousand
(61,000) votes.
82. During cross-examination, he stated that that he used to do
election campaign by Bicycle with his friends and they used to say
that respondent-Rabindra Nath Mahto is a good person. He is
volunteers of his party (i.e. JMM) and used to campaign by
Bicycle and his party has not distributed Handbill, Poster and
Mike.
83. Thus, from scrutinizing the evidence of R-W-6, it is evident
that he is a formal witness and he is a volunteer of JMM party and
who had participated in the election campaign of the respondent.
84. R.W-7 is Kali Pada Murmu, who stated during evidence that
he is simple volunteer of JMM party. The respondent-Rabindra
Nath Mahto was his party candidate and he had made election
campaign in his village Jabardaha for him and not at any other
place. Neither he had distributed any pamphlet or poster nor any
volunteer had distributed any paper and pamphlet.
On being shown Exhibit-01 by the learned counsel for the
respondent, the witness stated that he had not seen any such
pamphlet. He asserted to be in village from 15.12.2019 to
19.12.2019 and during said period he had not seen document like
this Exhibit-01 in the village. The voting was held on 20.12.2019.
54
He denied that any pamphlet like Exhibit-01 was distributed
by his party candidate or by any volunteer during election
campaign.
85. During cross-examination, he stated to be acquainted with
the respondent Rabindra Nath Mahto since last twenty (20) years.
His party used to make election campaign through Bicycle and
flag. However, he is not aware that his party used any other
medium during election campaign. He used to see campaign with
the respondent Rabindra Nath Mahto, who is a good person. He
has come for evidence on the instruction of the respondent.
86. Thus, from scrutinizing the evidence of R.W-7, it would
appear that he is a formal witness and he has appeared before this
Court on the instruction of the respondent and he has mainly
denied distribution of pamphlet (i.e. Exhibit-01) by the respondent
or any volunteers of JMM party.
87. R.W-8 is Sona Yadav who is a businessman. However, he
stated during his evidence that he is a simple volunteer of JMM
party and lives in Nala Assembly Region. He had done election
campaign for his party candidate Rabindra Nath Mahto. He had
made election campaign for the party at the village Jhantipahari,
Jaspur, Nala and Sundarpur by putting flag of his party on the
Motorcycle but he had not distributed any pamphlet or poster. His
party has not distributed any pamphlet or poster. He had gone to
village Jhantipahari for election campaign on 14.12.2019 and
15.12.2019 respectively.
On being shown Exhibit-01 by the learned counsel for the
respondent, the witness stated that he had not seen the document
like Exhibit-01 earlier and he had also not seen this Exhibit-01 or
any such paper earlier also. He has passed B.A and B. Ed.
55
He stated that any person can complain regarding wrong
poster or pamphlet for violating Model Code of Conduct through
C-Vigil and such person can upload his photo, video, audio at the
time of making complain and its solution was to be done within
hundred (100) minutes. He was at his booth on the date of election
and his candidate had secured more than sixty one thousand
(61,000) votes.
88. During cross-examination, he stated to be associated with
JMM for last 10-12 years but he is not on any post. He used to
make campaign by putting flag on his Motorcycle but he had not
taken any permission from Election Commission.
On being confronted by the learned counsel for the
petitioner for pointing out the name of candidate at a particular
serial number, the witness stated that he does not remember as to
whether he used to say during campaign that the name of the
candidate of his party is mentioned on which serial number of the
EVM Machine.
His party has not got printed any dummy handbill during
election period.
He had not uploaded any complain through the medium of
C-Vigil.
He had obtained information regarding C-Vigil through the
medium of paper or also through the website of Election
Commission.
He was also present on the date of voting at his booth and he
was sitting at a distance of 150 Meters from the booth.
89. Thus, from scrutinizing the evidence of R.W-8, it would
appear that he is a volunteer of JMM although he is a businessman
and he had also participated in the election campaign for
Jhantipahari, Jaspur, Nala and Sundarpur. However, he was
56
present at a distance of 150 Meter from the booth on the date of
voting.
90. R.W-9 is Rabindra Nath Mahto i.e. the Respondent himself,
who is the Returned candidate of Nala Assembly Election, 2019
and presently Speaker of Jharkhand Vidhan Sabha.
R.W-9 during his evidence stated that he had contested
election from Nala Assembly Constituency as a candidate of
Jharkhand Mukti Morcha and he was declared elected in the said
election of 2019. He was a candidate of Jharkhand Mukti Morcha
(i.e. J.M.M). He was working on different post of the party prior to
becoming Speaker of Jharkhand Vidhan Sabha, and after being
declared Speaker he had relinquished those posts. He had secured
more than sixty one thousand (61,000) votes in the election of
2019 and voting was held on 20.12.2019.
He is contesting election as party candidate of Jharkhand
Mukti Morcha from the year 2000. He had won three elections but
had lost in two elections. He had won the election in the year 2005
to 2009 however, he lost in the year 2009 to 2014. He had won the
election in the year 2014 and in the year 2019. His election region
is Nala, which is a general seat. There is general concept that
candidate of all sections/castes and caste can contest on the
General Category seat for the general candidate. There were
fifteen (15) candidates also apart from him in the election of the
year 2019 and four (04) candidates of Scheduled Tribes had also
contested the election of 2019. Kanhai Chanddra Malpaharia,
Pushpa Soren, Mahadeo Kisku and Santosh Hembram (i.e. the
election petitioner) were candidates of Schedule Tribe.
91. On being shown Exhibit-01 by the learned counsel for the
respondent, the witness stated that he is not aware of this paper. He
asserted that paper like this Exhibit-01 or other pamphlet were not
57
prepared by him. He asserted that election petitioner is wrong to
contend that Handbill or any other paper like Exhibit-1 were
distributed by him (i.e. R.W-9) or volunteers of his party. (Exhibit-
01 is the poster showing photograph of respondent-Rabindra Nath
Mahto and his name appears at Serial No.7 whereas Serial No.16
refers the name of election petitioner-Santosh Hembram but the
word NOTA is printed against Serial No.16).
On being shown Exhibit-02 by the learned counsel for the
respondent (which was exhibited on behalf of the petitioner), the
witness stated that he is not aware of the picture of the person on
this Exhibit-02 and he neither knows them nor he identifies them.
(Exhibit-02 is the photograph downloaded from the mobile of the
petitioner revealing the picture of persons. He further stated that
petitioner is wrong to contend that people shown him Exhibit-02
were the volunteers of JMM party.
He was at his residence on the date of voting and had gone to
the booth to cast his vote and he returned to his home after casting
his vote in the booth which was situated at Primary School,
Patanpur, Patnapur Village. He denied that pamphlet like
Exhibit-01 or papers were being distributed by him or by the
volunteers of his party at Patanpur booth.
He denied the contention of the petitioner that paper like
Exhibit-01 or pamphlet were being distributed by himself or by the
volunteer of his party at village Jaspur on 16.12.2019.
92. He further stated that the petitioner has incorrectly contended
that his party volunteers Ramdeo Soren and Much Marandi were
distributing certain pamphlet like Exhibit-01 at village Jabardaha.
He has knowledge that several precautionary measures are
being carried out by the Election Commission for doing any wrong
in the election so that people may not commit wrong or people
58
may institute complaint at concerned place in case of wrong being
done and the same are being dealt with.
He further stated that Election Commission of India had
launched one App namely C-Vigil for the election of 2019 and in
which a team arrives at every short period of time in case of filing
of any complaint and veracity of complaint is being investigated
and there is provision for taking action. Thereafter there is a Flying
Squad Team and even photography is being done by the Video
Surveillance Team and also by M.C.M.C body which monitors the
Election. Apart from this, there is a team of local police and team
of Central Government and there is a team for investigating the
financial issue.
He is not aware as to whether election petitioner had got the
matter investigated by any team for the wrongful acts/malpractice
with regard to Exhibit-01 (i.e. pamphlet).
He had got his banner, poster and flag printed on 06 th
December for his election campaign.
There is a column „NOTA‟ below the names of all the
candidates in EVM as per his knowledge. Approx 600 votes were
casted in NOTA in the said election. He has done his election
campaign by holding meeting, public relation, through the
Motorcycle, Cycle and permitted Vehicle by the Mike.
93. During cross-examination, he could not say the exact date of
filing the nomination paper after announcement of election.
However, he was allotted symbol on 6th December and the election
was held on 20.12.2019. He was authorized candidate of
Jharkhand Mukti Morcha party and his party is a regional party
and election symbol of his party is „Bow‟ and „Arrow‟. He was
declared authorised candidate of party on 06.12.2019 after scrutiny
of all candidates at district level.
59
On being shown Document-X by the learned counsel for the
petitioner, the witness states and admits that such paper is received
by them.
On being shown Document-X/2 by the learned counsel for
the petitioner, the witness stated that his name is mentioned at
Serial No.7 and his address and election symbol of his party are
written and this paper was probably received by him on
06.12.2019.
On being shown Document-X/2, the witness states that Serial
No.16 refers the name of Santosh Hembram, an independent
candidate and his election symbol is „Balla‟ (i.e. Bat).
He admits that he had got prepared poster, banner and flag
during the election.
His Nomination Paper was taken away by the election agent
through his learned counsel but he does not remember as to
whether his election agent had handed over which papers. He also
states that several papers are received including the book and he
also received a thick Handbook along with the papers.
Neither he nor his party nor by Election Agent, got printed
any dummy ballot paper.
Voter Felicitation Paper are being affixed on every booth by
Election Commission and Voters are being made aware of all the
Candidates and the voters cast vote on seeing the above papers of
the respective candidates.
On being confronted on the photograph of person in Exhibit-
02, who are said to be volunteers of his party, the witness stated
that he is not aware of persons whose names are shown in the
photograph of Exhibit-02.
He had not gone to village Jabardaha during the entire
election campaign.
60
He got his poster, banner from the place of Ranchi through
„Bharat Traders‟ press.
He learnt in the month of July 2022 through the newspaper
that the Election Petitioner has filed a case against him and
thereafter he had received the notice of the Court.
He had not made any complaint against the election
petitioner before the Election Commission.
Thus, from scrutinizing the evidence of R.W-9, it is evident
that he was Returned Candidate of 08-Nala Assembly
Constituency and he has denied the printing and distribution of
paper like pamphlet (Exhibit-01).
94. R.W-10 is Shravan Kumar Yadav, who stated during his
evidence that he is resident of Nala Assembly Election Region and
he has connection with Jharkhand Mukti Morcha party as a general
volunteer and the respondent-Rabindra Nath Mahto was his party
candidate in the said election. He had also made election campaign
with Rabindra Nath Mahto in his favour. He is also voter of
Upgraded Middle School, Murabahar village for voting. He had
accompanied with the Respondent in the election campaign.
He also made election campaign at his Panchyat
Khamarabad by putting flag in his Bicycle.
On being shown Exhibit-01 by the learned counsel for the
respondent, the witness stated that he had not seen such paper
during election campaign. His village is situated at a distance of
5-6 Kilometer from the village, Patanpur. He identifies all
volunteers of his party as he is a volunteer of Jharkhand Mukti
Morcha party.
On being shown Exhibit-02 by the learned counsel for the
respondent, the witness stated that the persons as shown in the
photograph mentioned in said Exhibit-02, are not the volunteers of
61
his party and it would be wrong to say that the persons shown in
Exhibit-02 were the volunteers of Jharkhand Mukti Morcha party.
He is aware of lodging complaints through C-Vigil App, if
any irregularity/misconduct is found during the election. He stated
that C-Vigil is an App and any person can download on its mobile
and even people can complain Election Commission, Jharkhand
through C-Vigil medium, if any irregularity/malpractice are found
and Election Commission acts promptly upon it. Rabindra Nath
Mahto (i.e. the respondent) had won the election of 2019. He is
aware of petitioner Santosh Hembram for the last 3-4 months and
he was also a candidate in the said election and had got around
1700 votes during the said election.
95. During cross-examination, R.W-10 stated that he is
associated with Jharkhand Mukti Morcha party since last 18-19
years and normally District In-charge is responsible for election
campaign. Being member of the party, he also used to make
election campaign. However, he had not taken any expenses from
his party during the election campaign. He is not aware of number
of votes to any candidates who had contested the 2019 Assembly
Election from his region but he is aware of vote of his party. He
has come to give evidence in this case on the instruction of
respondent-Rabindra Nath Mahto.
96. From scrutinizing the evidence of R.W-10, it is evident that
he is a formal witness and he has been brought by the respondent
to deny the photographs of people found and shown on Exhibit-02
and also to deny the publication of pamphlet (i.e. Exhibit-01) by
the Jharkhand Mukti Morcha party or by the Respondent.
Thus, the evidence of R.W-10 is simply a formality.
97. R.W-11 is Ashok Kumar Mahto, who claims to be an
agriculturist. However, during evidence, he stated that he is
62
President of Fatehpur Block of Jharkhand Mukti Morcha for the
last two years and he is a volunteer of JMM for the last several
years. He had worked for the respondent during 2019 Assembly
Election from Nala Assembly Constituency and who was
candidate of his party.
He further admitted to have worked as an Election Agent for
the Respondent in the year 2019 and he used to do all the works of
the respondent as being his Election Agent. 08 Nala Assembly
Constituency is a seat of general candidate and it is not a reserved
seat. However, any person of any community/caste and even the
persons of Scheduled Castes and Scheduled Tribes can appear to
contest election on general seat of Assembly Constituency. He has
also named four persons namely Kanhai Chandra Malpaharia,
Pushpa Soren, Mahadeo Kisku and Santosh Hembram. Apart from
his candidate, fifteen (15) other candidates had also contested the
2019 election.
He further stated that he had got printed the poster, banner
and flag for his party candidate Rabindra Nath Mahto.
98. On being shown Exhibit-01 by the learned counsel for the
respondent, the witness (i.e. R.W-11) stated that he had not seen
this paper earlier and it will be wrong that this Exhibit-01 were got
printed by him or by party or by any candidate. He used to move
some time for election campaign. His Booth No.79 is situated at
Upgraded Middle School, Village-Murabahar.
He had casted his vote on the date of voting. He claimed to
identify most of the volunteers of JMM.
On being shown Exhibit-02 by the learned counsel for the
respondent, the witness stated that he does not identify the person
shown in Exhibit-02. He stated that there is provision for making
complaint, if any irregularity/malpractice is found during the
63
election and this matter was informed to all the candidates during
the meeting. Even the general voters were made aware to make
complaint in case of finding of any malpractice/irregularity. Even
complaint can be made through mobile for which one App was
launched but he does not remember its name but there was a
provision that in case of finding any irregularity, a person can snap
photo from his mobile or through his photography and can institute
the complaint. Upon institution of complaint, there was provision
of solving the same in hundred (100) minutes.
99. He further stated that Sector Magistrate was deputed for
watching the irregularity on the date of election and they were
assigned to watch the booth in around half an hour to one hour. If
any party was doing wrong then they could have seen that.
Respondent-Rabindra Nath Mahto was declared elected and he had
secured more than Sixty One Thousand (61,000) votes. He is
aware of NOTA and approx 601 votes were casted for NOTA.
He got the banner, poster printed of his party candidate from
„Bharat Traders‟, Ranchi Press. He used to maintain concerned
cost relating to candidate during election.
He got written the details of cost and expenditure during
election by which printing were done from „Bharat Traders‟
Ranchi, and its detail were mentioned in Expenditure Register.
This said Expenditure Register was handed over to him by the
Returning Officer and he has mentioned all details as election
expenditure.
He is a volunteer of JMM party for the last 20-22 years and
prior to becoming Block President of the party, he was an active
volunteer of party and he became Block President two years ago.
He reiterated that he was Election Agent of the respondent in the
year 2019 Nala Assembly Constituency Region. He was given
64
Form-8 by the party candidate Rabindra Nath Mahto for becoming
the election agent. The candidate had spent approx 12 Lakhs in the
year 2019 election.
However, he has not got printed pamphlet of his candidate
but he got printed flag and banner but not a single hoarding was
prepared. He had made expenditure of approx one lakh in printing
and the said Rs.One lakh was paid to the Jharkhand Rajya Gramin
Bank, Mohnabad through the RTGS. Bharat Traders is situated in
Ranchi.
He had informed the Election Commission regarding the
complaint but he could not say the date of such information that
they had not printed any dummy ballot paper from the side of the
candidate.
On being shown Exhibit-01 by the learned counsel for the
petitioner, the witness stated that he had not seen said Exhibit-01
(i.e. handbill). On being further shown Exhibit-01, the witness
stated that he is not aware of printing press mentioned in it.
His candidate Rabindra Nath Mahto had won by approx four
thousand and above votes.
100. Thus, from scrutinizing the evidence of R.W-11, it is evident
that he was the Election Agent of the Respondent during Nala
Assembly Election 2019 and he had got printed the banner, poster
and flag from „Bharat Traders‟ Press, Ranchi. However, he flatly
denied about Exhibit-01 and Exhibit-02.
101. R.W-12 is Dayamay Ghosh, who stated during evidence that
election was held in Nala Assembly Constituency in December,
2019 on 20.12.2019. He is a general volunteer of Jharkhand Mukti
Morcha party and he had done election campaign by putting flat
on his Bicycle. The respondent-Rabindra Nath Mahto was his
65
party candidate, who was elected and won the Nala Assembly
election and had got more than sixty thousand (61,000) votes.
On being shown Exhibit-01, the witness stated that he had
not seen this Exhibit-01 or any paper like this during his entire
election campaign. Neither he nor any volunteers of his party had
distributed any paper or parcha like Exhibit-01. He had done
election campaign for around 8-10 days. He is not aware of
election petitioner of this case and not aware of the votes secured
by him.
102. During cross-examination, he stated that he is associated
with the party for the last 8-10 years and he was made Volunteer
by the Committee of the Party. He is not aware of the expenditure
incurred in preparing flag of the party. He used to campaign
through his Bicycle. He is also not aware as to how many
materials were got printed by his party during the election. He has
come to give evidence on the instruction of Rabindra Nath Mahto
(i.e. the Respondent).
103. Thus, from scrutinizing the evidence of R.W-12, it is
evident that he is a formal witness and he has come merely to give
evidence on the instruction of the respondent and he appears to be
a volunteer of the party of the respondent. He has been brought
only to deny the existence of the Exhibit-01.
104. It would appear that thereafter the Respondent had filed
another I.A. No.5526 of 2024 on 10.06.2024 for calling the
incomplete or remaining documents from the office of the District
Election Officer-cum-District Commissioner, Jamtara and the
learned AAG-III had filed reply to the said I.A. No.5526 of 2024
and had informed that three envelops i.e. Envelop-A, B and C have
been produced in a sealed cover.
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105. The respondent had also earlier filed I.A. No.1831 of 2024
on 19.02.2024 to call for documents mentioned in Annexure-A
series on record and Annexure-B series from the office of District
Election Officer-cum-District Commissioner, Jamtara.
However, this Court vide order dated 23.04.2024 allowed
the I.A No.1831 of 2024 in part and had allowed to call for final
result sheet in Form-20 of general election, which is mentioned at
Serial No.(ii) of Annexure-A only. Further this Court in order to
give opportunity to the respondent to lead evidence in his defence
allowed certain documents to be called for in this case, which are
as follows:-
―Document at Serial No. 4 is the Voter facilitation posters
and their details as displayed by the District Election
Officer-cum- 4 Deputy Commissioner, Jamtara, especially
in the Polling Stations mentioned in the instant Election
Petition.
Document at Serial No. 5 is the Complaints received
through the ―cVIGIL‖ Application from the Office of the
District Election Officer-cum-Deputy Commissioner,
Jamtara. Document at Serial No. 6 is the Complaint
received by Flying Squad constituted by District Election
Officer-cumDeputy Commissioner, Jamtara for monitoring
of the Model code of conduct, Electoral Offence, campaign
by contesting candidate/political parties in Nala (08)
Assembly Constituency especially in light of the averment
made in the instant Election Petition.
Document at Serial No. 7 is the Complaint received by
Sector Magistrate appointed by District Election Officer for
monitoring of poll and during vulnerability m apping in
Nala (08) Assembly Constituency especially in light of the
averments made in the instant EP.
Document at Serial No.10 is the Report of Sector
Magistrate inspection done before poll especially in booths
of Jhatipahari, Jabardaha and Jaspur as mentioned in the
instant EP.
Document at Serial No.12 is the The Presiding Diary of
polling Stations of 91 and 92 along with Visit Sheet of the
said Polling Stations.‖67
106. It further transpires that the date of this case was fixed on
08.05.2024. However, I.A. No.4652 of 2024 was filed on behalf of
the District Election Officer-cum-Deputy Commissioner, Jamtara
for 30 days‟ time for complying with the order dated 23.04.2024.
107. This Court vide order dated 08.05.2024 had called
explanation from concerned Assistant Registrar, Section Officer
and Dealing Assistant of High Court for sending the order by FAX
on 30.04.2024 though the order was passed on 23.04.2024.
108. This Court had also called for explanation from the Deputy
Commissioner, Jamtara for not producing the document in the
light of the order dated 23.04.2024 passed by this Court.
109. Pursuant to this order, the Deputy Commissioner, Jamtara
appeared in person on 16.05.2024 and filed the show cause and
tendered unqualified and unconditional apology and thereafter the
learned AAG-III had filed seven (07) sealed envelopes in the light
of the order dated 23.04.2024 except the document mentioned at
Serial No.5 i.e. C-Vigil application. Thereafter the parties were
directed to inspect the documents in the chamber of the learned
Joint Registrar (Judicial) of the High Court and the case was fixed
on 12.06.2024 after Summer Vacation. Thereafter the matter was
fixed on 12.06.2024.
110. However, the Respondent again filed I.A. No.5526 of 2024
for calling the incomplete or remaining documents from the office
of the District Election Officer-cum-District Commissioner,
Jamtara and the learned AAG-III took time to verify the prayer
made in I.A. No.5526 of 2024 and on 20.06.2024 the learned
AAG-III produced three (03) envelops i.e. Envelop-A, B and C
respectively in the sealed cover and this Court had further directed
the Deputy Commissioner, Jamtara for producing the further
necessary documents.
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111. It was also pointed out by the learned AAG-III before this
Court on 20.06.2024 that the documents mentioned at Serial No.4,
5 and 6 of the tabular chart of the reply dated 19.06.2024 have not
been submitted by Sri Surendra Kumar then Returning Officer, 08
Nala Assembly Constituency.
112. It further transpires from the order dated 13.08.2024 that
then Returning Officer, Surendra Kumar could not produce several
documents and an affidavit was filed on behalf of the Deputy
Commissioner, Jamtara on 19.06.2024 and 05.07. 2024 and it was
pointed out that several documents could not be found in the
Strong Room in the office of the Deputy Commissioner, Jamtara
and for which direction was issued to Sri Surendra Kumar, then
Returning Officer to locate the same. However, the Returning
Officer Surendera Kumar by an affidavit dated 12.07.2024, which
was filed on 20.07.2024, had enclosed copies of remaining
available documents instead of original documents. Sri Surendra
Kumar, i.e. P.W-3 by affidavit dated 12.07.2024 and 20.07.2024
had pointed out that those certain documents could not be located
earlier and hence he has produced the photo copies of those
documents.
113. Thereafter the documents were inspected by both the sides
in the Chamber of Joint Registrar (Judicial) on 22.08.2024.
Not satisfied with the above and the State filed another I.A.
No.9043 of 2024 under Section 151 CPC on 27.08.2024 for
submitting two documents i.e. Annexure-C and Annexure-D and
vide order dated 27.08.2024 this Court had allowed I.A. No.9043
of 2024 again learned counsel for both the sides were permitted to
inspect the documents in the Chamber of Joint Registrar (Judicial)
on 28.08.2024.
69
114. The respondent filed I.A. No.9465 of 2024 for marking the
documents (on admission) of both the sides and which was
allowed on 03.09.2024 with the consent of both the sides, by this
Court and the documents i.e. Exhibit-A, Exhibit-B to B/9
respectively, Exhibit-C, Exhibit-D to D/14 respectively, Exhibit-
DD-I, Exhibit-DD-II and also Exhibit-DD-III, Exhibit-DD-IV and
Exhibit-DD/V, Exhibit-E, Exhibit-E/I, Exhibit-E/II, Exhibit-E/III
respectively, Exhibit-F series, Exhibit-G and Exhibit-G/I series
and Exhibit-H and Exhibit-H/I respectively were marked (on
admission) by both the sides and the evidence of the respondent
was closed and the case was fixed for argument.
115. At this stage, it is relevant to refer Sections 86, 87, 100
123, 127A, 129, 130, 134 and 134A of the Representation of the
People Act, 1951, which are as follows:-
―86. Trial of election petitions.–(1) The High Court shall
dismiss an election petition which does not comply with the
provisions of section 81 or section 82 or section 117.
Explanation.–An order of the High Court dismissing an
election petition under this sub-section shall be deemed to be an
order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been
presented to the High Court, it shall be referred to the Judge or
one of the Judges who has or have been assigned by the Chief
Justice for the trial of election petitions under sub-section (2) of
section 80-A.
(3) Where more election petitions than one are presented to
the High Court in respect of the same election, all of them shall
be referred for trial to the same Judge who may, in his
discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon
application made by him to the High Court within fourteen days
from the date of commencement of the trial and subject to any
order as to security for costs which may be made by the High
Court, be entitled to be joined as a respondent.
Explanation.–For the purposes of this sub-section and of
section 97, the trial of a petition shall be deemed to commence
70
on the date fixed for the respondents to appear before the High
Court and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and
otherwise as it may deem fit, allow the particulars of any
corrupt practice alleged in the petition to be amended or
amplified in such manner as may in its opinion be necessary for
ensuring a fair and effective trial of the petition, but shall not
allow any amendment of the petition which will have the effect
of introducing particulars of a corrupt practice not previously
alleged in the petition.
(6) The trial of an election petition shall, so far as is
practicable consistently with the interests of justice in respect of
the trial, be continued from day to day until its conclusion,
unless the High Court finds the adjournment of the trial beyond
the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as
possible and endeavour shall be made to conclude the trial
within six months from the date on which the election petition is
presented to the High Court for trial.
87. Procedure before the High Court.–(1) Subject to the
provisions of this Act and of any rules made thereunder, every
election petition shall be tried by the High Court, as nearly as
may be, in accordance with the procedure applicable under the
Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to
refuse, for reasons to be recorded in writing, to examine any
witness or witnesses if it is of the opinion that the evidence of
such witness or witnesses is not material for the decision of the
petition or that the party tendering such witness or witnesses is
doing so on frivolous grounds or with a view to delay the
proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of
1872), shall, subject to the provisions of this Act, be deemed to
apply in all respects to the trial of an election petition.
100. Grounds for declaring election to be void.– [(1) Subject
to the provisions of sub-section (2) if [the High court] is of
opinion–
(a) that on the date of his election a returned candidate
was not qualified, or was disqualified, to be chosen to fill the
seat under the Constitution or this Act 5 [or the Government of
Union Territories Act, 1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other person
71
with the consent of a returned candidate or his election agent;
or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected–
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests
of the returned candidate 6 [by an agent other than his election
agent], or
(iii) by the improper reception, refusal or rejection of
any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made under
this Act, [the High Court] shall declare the election of the
returned candidate to be void.]
[(2)] If in the opinion of [the High Court], a returned
candidate has been guilty by an agent, other than his election
agent, of any corrupt practice [***] but [the High Court] is
satisfied–
(a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and every such
corrupt practice was committed contrary to the orders, and
[without the consent], of the candidate or his election agent;
*****
(c) that the candidate and his election agent took all
reasonable means for preventing the commission of corrupt
practices at the election; and
(d) that in all other respects the election was free from any
corrupt practice on the part of the candidate or any of his
agents,
then [the High Court] may decide that the election of the
returned candidate is not void.
123. Corrupt practices.–The following shall be deemed to be
corrupt practices for the purposes of this Act:-
[(1) ―Bribery‖ that is to say–
(A) any gift, offer or promise by a candidate or his agent or
by any other person with the consent of a candidate or his
election agent of any gratification, to any person whomsoever,
with the object, directly or indirectly of inducing–
(a) a person to stand or not to stand as, or [to withdraw or
not to withdraw] from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election,
or as a reward to–
72
(i) a person for having so stood or not stood, or for [having
withdrawn or not having withdrawn] his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any
gratification, whether as a motive or a reward–
(a) by a person for standing or not standing as, or for
[withdrawing or not withdrawing] from being, a candidate; or
(b) by any person whomsoever for himself or any other
person for voting or refraining from voting, or inducing or
attempting to induce any elector to vote or refrain from voting,
or any candidate [to withdraw or not to withdraw] his
candidature.
Explanation.–For the purposes of this clause the term
―gratification‖ is not restricted to pecuniary gratifications or
gratifications estimable in money and it includes all forms of
entertainment and all forms of employment for reward but it
does not include the payment of any expenses bona fide
incurred at, or for the purpose of, any election and duly entered
in the account of election expenses referred to in section 78.]
(2) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the candidate
or his agent, or of any other person [with the consent of the
candidate or his election agent], with the free exercise of any
electoral right:
Provided that–
(a) without prejudice to the generality of the provisions of
this clause any such person as is referred to therein who–
(i) threatens any candidate or any elector, or any person in
whom a candidate or an elector is interested, with injury of any
kind including social ostracism and ex-communication or
expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector
to believe that he, or any person in whom he is interested, will
become or will be rendered an object of divine displeasure or
spiritual censure, shall be deemed to interfere with the free
exercise of the electoral right of such candidate or elector
within the meaning of this clause;
(b) a declaration of public policy, or a promise of public
action, or the mere exercise of a legal right without intent to
interfere with an electoral right, shall not be deemed to be
interference within the meaning of this clause.
(3) ………………………………………………….
(4) ………………………………………………..
(5) ……………………………………………….
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(6) ……………………………………………….
(7) ……………………………………………….
(8) ……………………………………………….
127A. Restrictions on the printing of pamphlets, posters, etc.–
(1) No person shall print or publish, or cause to be printed or
published, any election pamphlet or poster which does not bear
on its face the names and addresses of the printer and the
publisher thereof.
(2) No person shall print or cause to be printed any election
pamphlet or poster–
(a) unless a declaration as to the identity of the publisher
thereof, signed by him and attested by two persons to whom he
is personally known, is delivered by him to the printer in
duplicate; and
(b) unless, within a reasonable time after the printing of the
document, one copy of the declaration is sent by the printer,
together with one copy of the document,–
(i) where it is printed in the capital of the State, to the Chief
Electoral Officer, and
(ii) in any other case, to the district magistrate of the
district in which it is printed.
(3) For the purposes of this section,–
(a) any process for multiplying copies of a document, other
than copying it by hand, shall be deemed to be printing and the
expression ―printer‖ shall be construed accordingly; and
(b) ―election pamphlet or poster‖ means any printed
pamphlet, hand-bill or other document distributed for the
purpose of promoting or prejudicing the election of a candidate
or group of candidates or any placard or poster having
reference to an election, but does not include any hand-bill,
placard or poster merely announcing the date, time, place and
other particulars of an election meeting or routine instructions
to election agents or workers.
(4) Any person who contravenes any of the provisions of
sub-section (1) or sub-section (2) shall be punishable with
imprisonment for a term which may extend to six months, or
with fine which may extend to two thousand rupees, or with
both.
129. Officers, etc., at elections not to act for candidates or to
influence voting.–(1) No person who is 1 [a district election
officer or a returning officer], or an assistant returning officer,
or a presiding or polling officer at an election, or an officer or
clerk appointed by the returning officer for the presiding officer
74
to perform any duty in connection with an election shall in the
conduct or the management of the election do any act (other
than the giving of vote) for the furtherance of the prospects of
the election of a candidate.
(2) No such person as aforesaid, and no member of a police
force, shall endeavour–
(a) to persuade any person to give his vote at an election, or
(b) to dissuade any person from giving his vote at an election,
or (c) to influence the voting of any person at an election in any
manner.
(3) Any person who contravenes the provisions of sub-section
(1) or sub-section (2) shall be punishable with imprisonment
which may extend to six months or with fine or with both.
[(4) An offence punishable under sub-section (3) shall be
cognizable.]
130. Prohibition of canvassing in or near polling stations.–
(1) No person shall, on the date or dates on which a poll is
taken at any polling station, commit any of the following acts
within the polling station or in any public or private place
within a distance of [one hundred metres] of the polling station,
namely:–
(a) canvassing for votes; or
(b) soliciting the vote of any elector, or
(c) persuading any elector not to vote for any particular
candidate; or
(d) persuading any elector not to vote at the election; or
(e) exhibiting any notice or sign (other than an official
notice) relating to the election.
(2) Any person who contravenes the provisions of sub-
section (1) shall be punishable with fine which may extend to
two hundred and fifty rupees.
(3) An offence punishable under this section shall be
cognizable.
134. Breaches of official duty in connection with elections.–
(1) If any person to whom this section applies is without
reasonable cause guilty of any act or omission in breach of his
official duty, he shall be punishable with fine which may extend
to five hundred rupees.
[(1A) An offence punishable under sub-section (1) shall be
cognizable.]
(2) No suit or other legal proceedings shall lie against any
such person for damages in respect of any such act or omission
as aforesaid.
75
(3) The persons to whom this section applies are the 4*** 5
[district election officers, returning officers], assistant
returning officers, presiding officers, polling officers and any
other person appointed to perform any duty in connection with
6*** the receipt of nominations or withdrawal of candidatures,
or the recording or counting of votes at an election; and the
expression ―official duty‖ shall for the purposes of this section
be construed accordingly, but shall not include duties imposed
otherwise than by or under this Act 4***.
[134A. Penalty for Government servants for acting as election
agent, polling agent or counting agent.–If any person in the
service of the Government acts as an election agent or a polling
agent or a counting agent of a candidate at an election, he shall
be punishable with imprisonment for a term which may extend
to three months, or with fine, or with both.] ”
116. It is relevant to refer Rule 61 and Rule 323 of the High
Court of Jharkhand Rules, which are as follows:-
―61. In administering oaths and affirmations to declarants the
Commissioner shall be guided by the provisions of the Indian
Oaths Act, 1873 (x of 1873) and the following forms shall be
used:
Oaths
I …………. swear in the name of God that this my
declaration is true, that it conceals nothing and that no part of it
is false.
Affirmation
I ……………. solemnly declare that this my declaration is
true, that it conceals nothing and that no part of it is false.
323. Every election petition shall, immediately below the title,
have endorsed on it ―Election Petition‖ and shall, in addition to
the grounds and date or dates specified in Section 81 and the
contents required by Section 83 or any other section of the Act
dealing with the presentation of such petitions, state-
(a) the name and complete address of the petitioner;
(b) the name and complete address with postal address of
each person impleaded as respondents; and
(c) the relief claimed.‖
117. It is further relevant to refer Rule 4, Rule 10, 12 and 13
and Rule 27-B, 27-C, 49(O) and Rule 92 of the Conduct of
Elections Rules, 1961, which are as follows:-
76
―4. Nomination paper.- Every nomination paper presented
under sub-section (1) of section 33 shall be completed in such
one of the Forms 2-A to 2-E as may be appropriate:
Provided that a failure to complete or defect in completing, the
declaration as to symbols in a nomination paper in Form 2-A or
Form 2-B shall not be deemed to be a defect of a substantial
character within the meaning of sub-section (4) of section 36.
[4-A. Form of affidavit to be filed at the time of delivering
nomination paper.- The candidate or his proposer, as the case
may be, shall, at the time of delivering to the returning officer the
nomination paper under sub-section (1) of section 33 of the Act,
also deliver to him an affidavit sworn by the candidate before a
Magistrate of the first class or a Notary in Form 26.]
10. Preparation of list of contesting candidates.–(1) The list of
contesting candidates referred to in subsection (1) of section 38
shall be in Form 7A or Form 7B as may be appropriate and shall
contain the particulars set out therein and shall be prepared in
such language or languages as the Election Commission may
direct.
(3) If the list is prepared in more languages than one, the
names of candidates therein shall be arranged alphabetically
according to the script of such one of those languages as the
Election Commission may direct.
(4) At an election in a parliamentary or assembly
constituency, where a poll becomes necessary, the returning
officer shall consider the choice of symbols expressed by the
contesting candidates in their nomination papers and shall,
subject to any general or special direction issued in this behalf
by the Election Commission,–
(a) allot a different symbol to each contesting candidate in
conformity, as far as practicable, with his choice; and
(b) if more contesting candidates than one have indicated
their preference for the same symbol decide by lot to which of
such candidates the symbol will be allotted.
(5) The allotment by the returning officer of any symbol to a
candidate shall be final except where it is inconsistent with any
directions issued by the Election Commission in this behalf in
which case the Election Commission may revise the allotment in
such manner as it thinks fit.
(6) Every candidate or his election agent shall forthwith be
informed of the symbol allotted to the candidate and be supplied
with a specimen thereof by the returning officer.
12. Appointment of election agent.– [(1) Any appointment
of an election agent under section 40 shall be made in Form 8
and the notice of such appointment shall be given by forwarding
77
the same in duplicate to the returning officer who shall return
one copy thereof to the election agent after affixing thereon his
seal and signature in token of his approval of the appointment.]
(2) The revocation of the appointment of an election agent
under sub-section (1) of section 42 shall be made in Form 9.
13. Appointment of polling agents.–(1) The number of polling
agents that may be appointed under section 46 shall be one agent
and two relief agents.
(2) Every such appointment shall be made in Form 10 and shall
be made over to the polling agent for production at the polling
station or the place fixed for the poll, as the case may be.
(3) No polling agent shall be admitted into the polling station or
the place fixed for the poll unless he has delivered to the
presiding officer the instrument of his appointment under sub-
rule (2) after duly completing and signing before the presiding
officer the declaration contained therein.
27B. Special provisions for voting by the notified class of
electors.–Notwithstanding anything contained in Part III, the
provisions of this Part shall apply to a notified elector who
wishes to vote by post at an election.
27C. Intimation by a notified elector.–A notified elector, who
wishes to vote by post at an election shall send an application in
Form 12-C to the Assistant Returning Officer for the notified
class of electors so as to reach him at least ten days before the
date of the poll and on receipt of the intimation such Assistant
Returning Officer shall issue a postal ballot paper to him:
Provided that an application which does not furnish
complete particulars as required in Form 12-C may be rejected if
such Assistant Returning Officer, despite making reasonable
efforts, is not in a position to ascertain the requisite information:
Provided further that an application in Form 12-C without a
certificate from the authorised officer as required under Part II
of Form 12-C shall be rejected.
49-O. Elector deciding not to vote.–If an elector, after his
electoral roll number has been duly entered in the register of
voters in Form 17-A and has put his signature or thumb
impression thereon as required under sub-rule (1) of rule 49-L,
decided not to record his vote, a remark to this effect shall be
made against the said entry in Form 17-A by the presiding officer
and the signature or thumb impression of the elector shall be
obtained against such remark.
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92. Custody of ballot boxes and papers relating to election. —
(1) All ballot boxes used at an election shall be kept in such
custody as the chief electoral officer may direct.
[(1A) All voting machines used at an election shall be kept in
the custody of the concerned district election officer.]
[(2) The district election officer shall keep in safe custody–
(a) the packets of unused ballot papers with
counterfoils attached thereto;
(b) the packets of used ballot papers whether valid,
tendered or rejected;
(c) the packets of the counterfoils of used ballot
papers;
[(cc) the printed paper slips sealed under the
provisions of rule 57-C;]
(d) the packets of the marked copy of the electoral roll
or, as the case may be, the list maintained under sub-section (1)
or sub-section (2) of section 152;
[(dd) the packets containing registers of voters in Form-
17A;]
(e) the packets of the declarations by electors and the
attestation of their signatures; and
(f) all other papers relating to the election:
Provided that in the case of an election in an assembly
constituency or a parliamentary constituency or a council
constituency which extends over more districts that one, the said
papers shall be kept in the custody of such one of the district
election officers having jurisdiction over the constituency as the
Election Commission may direct:
Provided further that in the case of an election by assembly
members the said papers shall be kept in the custody of the
returning officer.]‖Issue No.2 and 3
118. Both the issues are the crux of the matter and hence they
are being taken together and tried simultaneously.
119. It has been pleaded in the plaint that the election of the
sole Respondent/Returned Candidate is void under Section
100(1)(b) of the R.P. Act in view of the fact that the Returned
Candidate and his election agent have committed corrupt practice
by publication of materials to prejudice the prospects of the79
petitioner. It has also been stated that the petitioner could not
obtain the certified copy of his nomination paper as well as
nomination paper of all the candidates including the Returned
Candidate. However, he obtained the downloaded all the
nomination paper from the official website of the Election
Commission of India. However, during the time of election, the
sole respondent got printed handbills/pamphlets of specimen of
EVM showing the name of all the contesting candidates and their
position as given in Format-7- K. The sole respondent depicted his
name, photograph and symbol of Serial No.7 and he also got
deliberately printed the name of the petitioner at Serial No.16 with
his name as Santosh Hembram.
The petitioner stated that he is a member of Schedule Tribe
Community and 08-Nala Assembly Constituency consists of 32%
of population belonging to Tribal Community. However, the
Returned Candidate got printed/published handbills/pamphlets and
it shows that NOTA is printed at Serial No.16 of said
handbills/pamphlets. Even the Respondent and his agents got
pasted these handbills on the places of the villages wherein
Schedule Tribes Community reside in large number so that the
Schedule Tribes people may not cast their vote in favour of the
petitioner. It is also pleaded that the respondent has committed
corrupt practices at village Jhantipahari, village Jaspur and village
Jabardaha and got elected in 08-Nala Assembly Election.
However, neither the Returning Officer nor other Election Official
had taken cognizance of the conduct of the respondent.
120. Learned counsel for the petitioner has submitted that
P.W-1 and P.W-2 namely Santosh Hembram and Umesh Murmu
have fully supported the case of the election petitioner and they
have stated that the respondent has committed corrupt practices
80
and serious misconduct during election campaign of 08-Nala
Assembly Election. It is submitted that Exhibit-01 is the pamphlet
which shows that the name of the respondent is shown at Serial
No.7 and the name of the petitioner is shown at Serial No.16 and
the photographs of the sole respondent-Rabindra Nath Mahto got
printed over it. Exhibit-02 is the downloaded photographs of the
persons had taken the handbill/Purcha showing the photographs of
some people who are the volunteers of sole respondent and set up
the Jharkhand Mukti Morcha party. It is submitted that the
evidence of R.W-1 to R.W-12 is not reliable. It is submitted that
even the petitioner has filed Written Statement after delay of two
years in the year 2022 whereas the election petition was filed in
the year 2020. The evidence of R.W-1 to R.W-12 respectively is
not reliable as they are not truthful witnesses. It is submitted that
the election of the Respondents is liable to be set aside even if the
same is not affected by number of votes rather casting of single
votes by deceitful means would render the election illegal. Even
the complaint of the petitioner was not entertained by the Deputy
Commissioner, Jamtara as well as the Returning Officer and even
the officials of District Administrative are helping the sole
respondent. It is submitted that in view of the above, the petitioner
has valid cause of action for filing this election petition on the
ground of corrupt practices committed by the election agent of the
respondent as well as the volunteers of the respondent-Rabindra
Nath Mahto of the Jharkhand Mukti Morcha party.
121. On the other hand, the learned counsel for the Respondent
has submitted that petitioner has got no cause of action in filing
this election petition and no corrupt practices has been committed
either by the respondent-Rabindra Nath Mahto or by his volunteers
or even the volunteers of the Jharkhand Mukti Morcha party. It is
81
submitted that the petitioner had campaigned himself in all the
Assembly Constituencies areas during the election period but he
did not notice any NOTA handbill printed and distributed by the
sole Respondent. Neither the petitioner‟s supporters nor any voter
nor any well-wishers noticed or saw NOTA handbill like pamphlet
being distributed by the Respondent Even the petitioner did not
receive any information that the Respondent or his election agent
(i.e. the respondent‟s Election Agent) and his supporters are
canvassing with the Pamphlet i.e. Exhibit-01. Although it is
alleged that the Prem Kumar Hembram of village Jhantipahari had
informed the petitioner that Sri Sabut Murmu along with JMM
workers in door to door campaign have persuaded the people not
to cast any vote at Serial No.16 but the election petitioner failed to
examine him and said Prem Kumar Hembram has not been
examined by the petitioner.
It is submitted that P.W-2-Umesh Murmu had pointed out
that a boy aged between 14-15 years was distributing wrong
pamphlet but apart from that village he had not seen the said
handbill anywhere. It is submitted that the petitioner had not made
complaint before the Returning Officer or the Deputy
Commissioner, Jamtara.
It is submitted that even the voter list would reveal that the
petitioner has secured lesser vote whereas the respondent is a
winning candidate and after the election was over the petitioner
has formally made complaint before the Election Commission of
India on 04.02.2020 i.e. after three months of election of the year
2019. It is submitted that the alleged photographs (marked as
Exhibit-02 also does not have any legal proof in view of provision
of Section 65-B of Indian Evidence Act because Exhibit-02 as
alleged by the election petitioner, is a photograph taken by him
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from his mobile phone camera on Polling Day at the village
Patanpur. It is submitted that the Hon‟ble Supreme Court in the
case of Arjun Panditrao Khotkar vs. Kailash Kushanrao
Gorantyal and Ors. reported in (2020) 7 SCC 1 has held that non-
compliance of the provisions of Section 65-B of Indian Evidence
Act would render the Exhibit as tempered and manufactured. The
petitioner had not filed any written complaint on the date of
voting. Thus, the respondent has not committed any error.
122. From perusal of the deposition of witnesses of the
petitioner, it would appear that the petitioner was examined as
P.W-1 in this case and he has stated that on 20.12.2019 while he
arrived at Patanpur Booth Nos.91 and 92 then he was surprised to
see that several JMM volunteers were sitting with Demo Machine
of EVM and posters and it was seen by him that Serial No.16 is
written as NOTA and saw that Serial No.16 on the poster depicts
his name. Thereafter he immediately got the said photograph from
his mobile and even later on volunteers informed that NOTA is
printed against Serial No.16 and it would be useless to cast vote on
it. Thereafter the petitioner tried to contact Election Observer
through his mobile but he could not receive the phone. He had also
submitted written application to the Deputy Commissioner,
Jamtara on 22.12.2019 after the election was over regarding the
above aspect that NOTA is printed at Serial No.16 against his
name. He has proved the Purcha i.e. Exhibit01 (with objection).
He further proved the original photograph of the persons which
was snapped from his mobile marked as Exhibit-02 (with
objection). He further proved the photo copy of application
submitted to D.C., Jamtara on 22.12.2019 and which is marked as
X/1 for identification. He further proved the document X/2 which
is photo copy of Prapatra-7 K (Format-7 K). He further proved the
83
photo copy of the nomination paper marked as Exhibit-3 (with
objection) and which is in 14th pages issued by the Returning
Officer on 29.11.2019. He further proved his Caste Certificate
marked as Exhibit-4 (with objection). Even during his election
campaign he was informed by villager Prem Kumar Rana i.e. Prem
Kumar Hembram that wherever election campaign is being done
wrong pamphlet was being shown and it is circulated/campaigned
by Jharkhand Mukti Morcha volunteers to cast vote at Serial no.7
to the Respondent-Rabindra Nath Mahto whereas his name is
shown at Serial No.16 of the said handbill and it was ensured that
the vote will be useless at Serial NO.16. He also admitted that he
does not remember that the petitioner has filed written complaint
before the Deputy Commissioner, Jamtara and the other available
employee are not entitled to grant relief to such an employee. He
further could not say that he is being shown wrong handbill.
123. P.W-2 is Umesh Murmu who is the election agent of the
petitioner and stated during his evidence that while there was
election campaign on 16.12.2019 at his village Jaspur then JMM
volunteers namely Jaydhan Hansda, Rupchand Hansda and other
volunteers were submitting and distributing pamphlet and
influencing the voters to not give vote at Serial No.16 upon which
NOTA is mentioned.
During cross-examination, he admitted for having certificate
of Election Agent from the petitioner-Santosh Hembram. He
became Election Agent on the date of scrutiny. However, he was
not aware that works done by the election agent on behalf of the
informant will be treated as work of the candidate. However, he
could not take the name of the children who had handed over that
pamphlet i.e. marked as Exhibit-1 (with objection). Even after
voting he had not made any complaint before any officer.
84
Thus, P.W-2 has not able to support the case of the
petitioner.
124. P.W-3 is Surender Kumar then Returning Officer, who has
been examined on behalf of the petitioner. He has merely stated
that counting was started in the morning on 23.12.2017 and the
result was declared in the night between 2.30 to 3.00 a.m and the
Returning Candidate was the respondent-Rabindra Nath Mahto.
He admitted for submitting the documents for the first time vide
letter dated 22.02.2023. He further submitted the required
documents vide letter dated 09.09.2023. He admitted his mistake
for not submitting three documents due to mistake.
During Cross-examination, he stated that hearing of
complaint by any complainant was beyond his jurisdiction and any
malpractice in election was to be complained through Portal (in
Para-16 and 17 of his evidence) and that can be lodged in Model
Code of Conduct Cell after initiation of election proceeding till the
declaration of the result and he also stated that no complaint was
made by the election petitioner with regard to dispute of pamphlet
before him nor his election agent had made any complaint before
him.
125. On the other hand, the respondent has examined twelve
(12) witnesses in support of his case including himself and has
denied for distributing any pamphlet like Exhibit-01.
R.W-1 to R.W-8 namely, Janardhan Bhandari, Jaydhan
Hansda, Binod Raut, Sadhucharan Mahto, Manoranjan Hansda,
Musuhy Marandi, Kali Pada Murmu and Sona Yadav respectively
and R.W-10 to R.W-12 namely Shrawan Kumar Yadav, Ashok
Kumar Mahto and Dayamay Ghosh respectively have stated that
they had made election campaign on behalf of the Returned
candidate-Rabindra Nath Mahto and they had not seen any
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pamphlet (i.e. Exhibit-1) during the election campaign and the
respondent-Rabindra Nath Mahto had not got printed any
pamphlet like Exhibit-01. They have stated that the respondent-
Rabindra Nath Mahto had secured more than 61,000 (Sixty one
thousand) votes whereas the election petitioner has got only 1700
votes.
126. R.W-1 namely Janardhan Bhandari is a volunteer of JMM
and also Joint Secretary of Nala Block of JMM and stated during
evidence that he had made election campaign on behalf of the
respondent-Rabindra Nath Mahto and different candidates have
contested. On being shown Exhibit-01 (i.e. pamphlet) to the
witness, he flatly denied to have seen the Exhibit-01 and stated
that the respondent-Rabindra Nath Mahto had not got printed such
pamphlet.
During cross-examination, he denied about publication of
pamphlet by the respondent. On being shown pamphlet (i.e.
Exhibit-01) by the learned counsel for the petitioner, he admitted
that Exhibit-01 contains the photograph of the respondent-
Rabindra Nath Mahto and his name is mentioned at Serial No.7.
127. Thus, from scrutinizing the evidence of R.W-1, it is evident
that he had denied regarding distribution of pamphlet (i.e. Exhibit-
01) by the respondent namely Rabindra Nath Mahto. Thus, the
evidence of R.W-1 has supported the case of the petitioner.
128. R.W-2 is Jaydhan Hansda who is a Block Secretary of Nala
Block of JMM and he stated that he had remained with the
respondent-Rabindra Nath Mahto during the election campaign
sometimes together and sometimes separately they used to make
election campaign. On being shown Exhibit-01, he stated that they
had not distributed any pamphlet like Exhibit-01 and he is seeing
this Exhibit-01 for the first time. He denied the assertion of the
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election petitioner that such pamphlet (Exhibit-01) was being
distributed in his village on 16.12.2019 by any election agents or
volunteers. He asserted that election petitioner has wrongly
contended that respondent-Rabindra Nath Mahto or his election
agents were distributing pamphlet like Exhibit-01.
During cross-examination, he stated that he used to make
election campaign at different places but he is not aware as to
whether they had campaigned by poster, banner and handbill or
not.
He further stated that he was at his house on 16.12.2019 and
had not gone for election campaign. He claims to have identify all
the persons of his village. He admitted in para 14 that he identifies
Umesh Murmu-P.W-2 who belongs to his village.
He asserted that he was not making election campaign on
16.12.2019 as his wife was not well and she was suffering from
Kidney disease.
On being shown Exhibit-01 by the learned counsel for the
petitioner, he admits that name of respondent-Rabindra Nath
Mahto is mentioned at Serial No.7 of Exhibit-01 and NOTA is
mentioned at Serial No.16 of said Exhibit-01. He is not aware as to
how many posters were got printed by the respondent-Rabindra
Nath Mahto.
129. Thus, from scrutinizing the evidence of R.W-2, it is evident
that he is Block Secretary of Nala Block which is election
constituency of petitioner as well as the respondent. He claims to
be in his house on 16.12.2019. He had denied the fact that he was
seen by P.W-2-Umesh Murmu on 16.12.2019 when he along with
other volunteers were campaigning for the Respondent-Rabindra
Nath Mahto. Thus, R.W-2-Jaydhan Hansda has refuted the case of
the petitioner.
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130. R.W-3 is Binod Raut who stated to be volunteer of JMM
party. He stated that he had also made election campaign with the
respondent-Rabindra Nath Mahto during the Assembly Election
held in the year 2019 and claimed to work with him for 5-6 days
and voting took place on 20.12.2019. He admitted himself to be
the agent and his work was to make the people understand at the
outside the polling booth at Primary School, Patanpur. He has also
denied the existence of Exhibit-01 wherein it was shown to him by
the learned counsel for the respondent and stated that the
respondent was not distributing Exhibit-01 on the date of polling.
He asserted that no candidate of any party was present before him
on the date of voting. There were around 450 voters at his voting
booth. On being shown Exhibit-02 (i.e. downloaded photograph
from the phone) the witness stated that neither any such person
was present there nor any person of JMM were present at the
booth.
During cross-examination, he admitted to be present at
Booth No.91 at Patanpur and apart from him 2-3 agents were also
present on that day. He stated that village Baghmara is adjacent to
his village and one Mani Shankar Mahto is worker of JMM but he
is not aware as to whether one Binod Jha is also worker of JMM
party or not.
He admitted to be booth agent and was available at a
distance of approx 150 Meters from the booth on the date of voting
during the election. He was made booth agent by his candidate
Rabindra Nath Mahto but he does not remember whether he filled
any form or not for the said work.
He further admitted that there was another polling booth
adjacent to his polling booth and several persons were arrived at
his booth and also on another booth and hence in order to make the
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people aware and understand he was present at a distance of 150
Meters from the booth, but he was not telling any voter to whom
they have to give vote to which party. He was sitting on the mat on
the date of voting and he was having the flag of his party and had
kept voter list of the voters, however, there was no handbill on that
day with him. He is acquainted with the respondent-Rabindra Nath
Mahto for about 20 years however he has not done any work from
the MLA fund of the respondent-Rabindra Nath Mahto.
131. Thus, from scrutinizing the evidence of R.W-3, it is evident
that he was the Booth Agent of Respondent No.3 who was
contesting on behalf of JMM party and was sitting at a distance of
150 Meters from the booth to make people aware about voting.
He has denied the distribution of Exhibit-01 by the respondent-
Rabindra Nath Mahto and he has also denied the existence of
Exhibit-01 and Exhibit-02 respectively. He has denied the
identification of the persons shown on the Exhibit-02. The conduct
of R.W-3 shows that he was all through present on the date of
voting from 7.00 a.m. to 6.00 p.m. to influence the voters.
132. R.W-4 is Sadhucharan Mahto. He also claims to be worker
of JMM party form 08-Nala Assembly Constituency. He had also
worked for the respondent-Rabindra Nath Mahto who was
candidate of his party and had persuaded in the election campaign
and he used to make campaign by his Cycle but he has not
distributed any pamphlet etc. and his party has also not distributed
any pamphlet or handbill.
On being shown Exhibit-01 by the learned counsel for the
respondent, the witness denied to have seen any document like this
Exhibit-01. He asserted that the workers of respondent-Rabindra
Nath Mahto had not distributed any pamphlet like Exhibit-01. His
candidate has secured more than 61,000 votes. He was also present
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outside the booth at Manjhuladih on the date of voting and on that
day none of the candidate had arrived at his booth.
During cross-examination, he stated that he had visited
Manjhuladih Middle School Booth, Patnapur Booth and Fatehpur
Booth for campaign by his Cycle but he was not paid any expenses
by the candidate for the said campaign. He had never carried any
handbill during campaign and he used to campaign by Mike for
JMM party. Neither his candidate nor any volunteer of JMM party
had distributed any handbill. He was also present outside booth on
the date of voting at a distance of 100-150 Meters and he remained
there around 2.30 p.m.
He is aware of only two candidates namely his candidate
Rabindra Nath Mahto and one Satyanand Jha but he is not aware
of others. He claimed that none of the candidate of any party had
arrived on the date of voting and he is not aware of candidate
contesting the said election.
133. Thus, from scrutinizing the evidence of R.W-4, it is evident
that he is the Booth agent of the respondent who had contested
from JMM party and he was present at a distance of approx 100-
150 Meters from the Polling Booth Center. He has also denied the
existence of Exhibit-01 and Exhibit-02.
Thus, R.W-4 is a formal witness and has supported the case
of the Respondent.
134. R.W-5 is Manoranjan Hansda, who stated that he worked as
a worker of JMM party during Assembly Election of the year 2019
and he used to campaign by Bicycle by taking the flat. However,
he had not distributed any pamphlet or flag and his party had also
not distributed any pamphlet or handbill. He has also casted his
vote at Primary School, Jaspur on the date of Assembly Election
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on 201.2.2019. He casted his vote around 12.00 noon and had
returned by 2.00 p.m.
On being shown Exhibit-01 by the learned counsel for the
respondent the witness denied to have seen any such paper and no
such paper like Exhibit-01 was not distributed by any person of
JMM party. He denied that such pamphlet was distributed at his
village Jaspur.
During cross-examination, he stated to be a worker of JMM
party for last 20 years. He used to attend the meeting of JMM
sometimes and Shyamlal is District President of his party. He used
to make campaign in election by Bicycle and had campaigned for
around 8-10 days but he was not having any Mike on his Bicycle.
He had casted his vote on Primary School, Jaspur.
135. Thus, from scrutinizing the evidence of R.W-5, it would
appear that he is a formal witness and has supported the case of the
Respondent he has denied regarding non-distribution of any
pamphlet like Exhibit-01 and handbill by his party and by any
volunteer of his party. He has been examined only on the point of
not distributing pamphlet (i.e. Exhibit-01) by the respondent-
Rabindra Nath Mahto.
136. R.W-6 is Musuhy Marandi who stated during evidence that
last election was held on 20.12.2019 and he was associated with
JMM in said election and he used to make election campaign with
his friends by taking the flag and he is aware of all workers namely
Ramdeo Soren and Much Marandi. They used to make election
campaign for the respondent-Rabindra Nath Mahto who is a good
person. He has also denied the existence of pamphlet (i.e. Exhibit-
01) when it was shown to him by the learned counsel for the
petitioner. He denied the distribution of such pamphlet like
Exhibit-01 in his village. He also casted his vote in his village on
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20.12.2019 and had not seen any pamphlet like Exhibit-01. His
candidate had got more than 61,000 (Sixty one Thousand) votes.
During cross-examination, he stated to have made election
campaign by Bicycle for the Respondent-Rabindra Nath Mahto but
his party had not distributed handbill, poster. He returned to his
village after casting his vote.
137. Thus, from scrutinizing the evidence of R.W-6, it is evident
that he had been examined only on the denial of Exhibit-01 and he
has stated that he made election campaign for the respondent-
Rabindra Nath Mahto. Thus, R.W-6 is a formal witness. However,
he has supported the case of the Respondent.
138. R.W-7 is Kalipada Murmu, who is also a volunteer of JMM
party and stated to have made election campaign orally at village
Jabardaha for the Respondent-Rabindra Nath Mahto. However,
neither he nor any volunteer of his party had distributed any
pamphlet or any poster.
On being shown Exhibit-01 by the learned counsel for the
respondent, the witness denied to have seen any such pamphlet. He
also casted his vote on 20.12.2019 and he remained in the village
from 15.12.2019 to 19.12.2019 and during the said period he had
not seen any pamphlet like Exhibit-01. He denied that any
pamphlet like this Exhibit-01 was distributed by his party
candidate or by any volunteer.
During cross-examination, he stated to be acquainted with
respondent-Rabindra Nath Mahto since last 20 years. He claimed
that his party used to make election campaign by Cycle and Jhanda
but not aware that his party also used to campaign by other
medium.
139. Thus, from scrutinizing the evidence of R.W-7, it would
appear that he is also a formal witness and he has been examined
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on behalf of the respondent for denying the existence and
distribution of any document like pamphlet (i.e.Exhibit-01).
140. R.W-8 is Sona Yadav who is also a worker of JMM party.
He had also participated in the election campaign for his
candidate-Rabindra Nath Mahto and made campaign at village
Jhantipahari, Jaspur, Nala and Sunderpur by putting flag on his
Motorcycle. However, neither he nor anyone from his party had
distributed any pamphlet or poster.
On being shown pamphlet (i.e.Exhibit-01), R.W-8 stated to
see this paper for the first time and he had not seen any document
like Exhibit-01 earlier. However, he further stated that any person
can make complain for poster or pamphlet through C-Vigil and the
said person can upload his photo, video and audio and on receiving
such complaint, its solution was to be done within hundred (100)
minutes. He was also present in his booth on the date of voting and
his candidate has secured more than 61000 (Sixty one Thousand)
votes.
During cross-examination, he stated to be associated with
JMM party for the last 10-12 years but not on any post. He used to
make election campaign by his Motorcycle. His party had not
distributed any dummy handbill during election. He had not
uploaded any complaint by C-Vigil app medium. He obtained
information about C-vigil through paper and also from the website
of Election Commission. He admitted to be standing outside booth
at a distance of 150 Meters on the date of voting but his party had
not distributed any poster or pamphlet.
141. Thus, from scrutinizing the evidence of R.W-8, it would
appear that he is a businessman but claims to be simple volunteer
of JMM party and he is an educated person as he is aware of C-
vigil App through which any complaint can be lodged by
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uploading his photo or of any person. He also claimed to be
present outside the booth at a distance of 150 Meter on the date of
polling. Thus R.W-8 has supported the case of the Respondent.
142. R.W-10-Shrawan Kumar Yadav, who is an Agriculturist
and stated to be a simple worker of JMM party. He had also
campaigned for his candidate by Cycle by putting flag upon it at
his Panchayat Khamarbad. He also denied to have seen Exhibit-01
when it was shown to him by the learned counsel for the
respondent. His village is situated at a distance of 5-6 Kilometer
from village Patanpur and he claimed to identify all the volunteers
of JMM.
On being shown Exhibit-02, the witness stated that the photo
of the persons shown in the Exhibit-02 are not the volunteers of his
party and none of the volunteers of the JMM are seen in said
Exhibit-02. He is also aware that any complainant can lodge his
complaint through C-Vigil App, if any wrong is found in election.
C-Vigil App can be downloaded from any person from his mobile
phone and any person can make complain to Election
Commission, Jharkhand by C-Vigil. His candidate has secured for
more than 61,000 (Sixty one Thousand) votes whereas the
petitioner-Santosh Hembram has secured approx. 1700 votes in the
said election.
During cross-examination, he stated that he is associated
with the respondent for the last 18-19 years and they used to
campaign for his party but he had not taken any expenses of
campaigning from his party.
On being confronted on the question of securing vote by
other contestants, the witness stated that he is aware of the votes of
his party candidate only.
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143. Thus, R.W-10 is also a formal witness and he is a party
worker and he has denied the existence of Exhibit-01 (i.e.
Pamphlet), Exhibit-02 (i.e. downloaded photo of the persons on
the poster). However, he has supported the case of the Respondent.
144. R.W-11 is Ashok Kumar Mahto and he is also an
agriculturist and President of Fatehpur Block of JMM for the last
two years and worker of JMM party for several years and he had
worked for the respondent-Rabindra Nath Mahto as an Election
Agent. He also stated that 08-Nala Assembly Constituency is a
general seat and not a reserved seat and any person of any category
can contest as a general candidate and even SC/ST candidate can
contest from said region. He had got printed poster, banner and
flags for his party candidate Rabindra Nath Mahto.
On being shown Exhibit-01 (i.e. Pamphlet), the witness
claimed to have not seen it and denied that such Exhibit-01 was
got printed by his party or contesting candidate. His Booth No.79
was situated at Upgraded Middle School, Village Murabahal and
on the date of voting he was at his residence and had gone to cast
vote.
On being shown Exhibit-02 by the learned counsel for the
respondent, the witness stated that he does not identify the persons
who are shown in Exhibit-02.
He also stated that there is provision for making complaint, if
anything wrong is found during election campaign and such
complaint can be made by mobile and for which an App has been
lodged although he could not say the name of App in which there
was provision to make complaint by taking a photo from his
mobile or by photograph or by doing photography if any wrong
was found during election and when complaint was to be disposed
of within hundred (100) minutes. Even complaint can be made to
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Election Commission of India and even Observer/Returning
Officer and some other persons used to hear the complaints and
they used to dispose of the same. Even Sector Magistrate were
deputed to see the wrong/error on the date of election and their
work was to visit the booth within half an hour to one hour and
they could have seen any party doing wrong. The respondent-
Rabindra Nath Mahto had secured more than 61,000 (Sixty one
Thousand) votes and he was the Returned Candidate. He is aware
of NOTA and approx 601 votes were casted for NOTA. He got the
banner, poster of the party candidate from M/s Bharat Traders,
Ranchi press. He used to maintain the expenditure and accounting
of his candidate relating to expenses of election during the period
of election. He had written full details of election expenses which
were printed from Bharat Traders, Press, Ranchi and which were
mentioned in Expenditure Register and that Expenditure Register
was handed over to him by the Returning Officer and he has given
all details of election expenses in the said Register.
145. During cross-examination, R-W-11 stated that he is a
volunteer of JMM party for the last 20-22 years prior to becoming
Block President. He was handed over Form-8 of his party
candidate-Rabindra Nath Mahto for becoming his Election Agent
and there was expenditure of approx Rs.Twelve Lakhs in the said
election of his party candidate.
He asserted that he had not got printed pamphlet of his
candidate but he had got printed flag and banner but not a single
hoarding was affixed. He has incurred expenditure of Rs.One lakh
in the said printing and said Rs.One Lakh was paid through RTGS
from Jharkhand Rajya Gramin Bank, Mohnabad. Bharat Traders,
Ranchi press is situated in Ranchi. His party had not printed any
handbill or poster.
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He denied for got printed dummy Ballot Paper from the side
of his candidate.
On being shown Exhibit-01 by the learned counsel for the
petitioner, he has stated that he had not seen such handbill or any
such paper like Exhibit-01 during election period.
On being confronted on the name of printing press of
Exhibit-01, R.W-11 stated that he is not aware of printing press
mentioned in it. His party candidate has secured victory for more
than Four Thousand (4,000) votes. However, he could not say the
percentage of Scheduled Tribe votes in 2019 Assembly Election.
He had not made any complaint before Election Commission prior
to the date of polling till the date of polling.
146. Thus, from scrutinizing the evidence of R.W-11, it is
evident that he is Election Agent of the Respondent and he had
maintained the records of expenditure during the election period of
respondent-Rabindra Nath Mahto. He had denied for getting the
Exhibit-01 published from Lucky Press, Ranchi during his cross-
examination.
He stated and admitted about the making expenditure of
Rs.Twelve Lakh in printing materials of the respondent-Rabindra
Nath Mahto. He had flatly denied the printing of handbill and
poster.
Thus, R.W-11 has supported the case of the Respondent.
147. R.W-12-Dayamay Ghosh, who is also an agriculturist and
said to be simple volunteer of JMM party and stated that he used to
move village to village from his Cycle during 2019 Assembly
Election. His candidate has secured more than 61,000 (Sixty one
Thousand) votes from 08-Nala Constituency.
On being shown Exhibit-01 by the learned counsel for the
respondent, he denied to have seen Exhibit-01 or any paper like
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Exhibit-01 during election. He further denied to have distributed
such paper or Purcha. He had made election campaign for around
8-10 days. However, he is not aware of election petitioner and also
not aware of votes secured by him.
During cross-examination, he again stated to be volunteer of
JMM party for the last 8-10 years and he has been made volunteer
by the Committee. However, he is not aware of the expenditure of
flag by his party. He is also not aware of materials which were
printed by his party during the period of election.
148. Thus, from scrutinizing the evidence of P.W-12, it is
evident that he is a formal witness and he has come only to deny
Exhibit-01 but he has supported the case of the Respondent.
149. R.W-9 is Rabindra Nath Mahto and who is the Returned
Candidate and presently nominated as the Speaker in Jharkhand
Vidhan Sabha.
R.W-9 has stated during his evidence that he was Jharkhand
Mukti Morcha (JMM) candidate from 08-Nala Assembly
Constituency and he was declared winner in the election of 2019.
His election region is Nala Constituency which is a general seat
and people of any caste may contest from general seat. There were
fifteen (15) other candidates apart from him in the said election.
On being shown Exhibit-01 by the learned counsel for the
respondent, the witness stated that he is not aware of the paper. He
asserted that it is wrong on the part of the election petitioner to
content that he had got prepared the pamphlet or any document
like Exhibit-01 and he had also not got distributed any pamphlet
like Exhibit-01 or by his party volunteers.
On being shown Exhibit-02, the witness stated that he is not
aware of the photo of the persons shown in Exhibit-02 and the
people shown in Exhibit-02 were not the volunteers of JMM party.
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He was at his house on the date of election and he had gone to cast
vote in his booth and returned back to his house and remained in
his house for the whole day. His booth is situated at Primary
School in Patanpur village. Neither he nor the volunteers of his
party had distributed any pamphlet like Exhibit-01 at Patanpur
booth. He also denied that either he or the volunteer of his party
had distributed any paper or pamphlet like Exhibit-01 on
16.12.2019 at village Jaspur.
He asserted that his party volunteers were not working with
Ramdeo Soren and Much Marandi. He is aware of the fact that
various precautionary measures have been taken by the Election
Commission for dealing with any wrong committed in the election
so that people may not commit mistake or they may be able to
lodge complain at concerned places in case of wrong committed
and so that it can be resolved.
150. He also stated that Election Commission of India has issued
an App C-Vigil for election to be held in the year 2019 and in
which a team arrives at a very short time on finding complain and
veracity of the complaint is tested and there is provision for taking
action. Apart from this, there is a Flying Squad team and
photography is being done by Video Surveillance team and there is
MCMC Body which monitors the election. Apart from this, there
is a team of local police and team of Central Government and there
is a team for investigating financial issue. Thus, a team is
constituted by Election Commission of India for finding the wrong
in the election.
He has no information that this election petitioner had filed
any application regarding Exhibit-01 (i.e. Pamphlet) before any
team within his Assembly Region.
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He had also got printed his banner, poster and flag on
06.12.2019. There is a provision of NOTA in the EVM below the
names of the list of candidates. So far as NOTA is concerned,
approx 600 votes were casted in NOTA. He had adopted the mode
of election campaign by holding meeting, public relation,
Motorcycle and permitted Vehicle through the Mike.
151. During cross-examination, he stated that symbol was
allotted to him on 06.12.2019 and election was held on
20.12.2019. He was authorized representative of JMM which is a
Regional Party. His party is having sign of „Bow‟ and „Arrow‟.
On being shown Document-X (photo copy of Format-7 K)
the witness stated that such papers are given to them.
On being shown Document-X/2 (photo copy of Format-7 K
in which the name of Election Petitioner is mentioned at Serial
No.16 and election symbol is „Balla‟ and his photo is affixed), he
stated and admitted that the name of the petitioner is shown at
Serial No.16 as an Independent Candidate with having his election
symbol „Balla‟.
He admitted to have got printed poster and banner during the
election period.
His nomination paper was taken by his election agent,
lawyer, however, he does not remember as to what papers has been
handed over to his election agent. The witness himself stated that
several papers were received by him in which a thick Handbook
was also given to him.
Neither he nor his party with his election agents had got
printed dummy Ballot Paper. Election Commission fixes Voter
Felicitation Paper on every booth and all the candidates are being
aware to the voters and on seeing those paper, the voters cast their
vote to their respective candidate.
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On being ask in question and answer form at para-47 as to
how he is aware of the fact that the photograph of the persons
shown in Exhibit-02 belongs to the volunteers of his party or not
and how he is aware and upon which, the witness R.W-9 has stated
that he does not know the person who has been shown in the
photographs of Exhibit-02.
He had not visited village Jabardaha during his entire
election. He got his poster, banner from the press of Ranchi where
his poster and banner were printed by „Bharat Traders‟ press.
He learnt about notice of filing of this case against him by
the Election Commissioner in the month of July, 2022 through the
newspaper and thereafter he had received the notice of the Court.
However, he had not made any complaint before the Election
Commission.
152. Thus, from scrutinizing the evidence of R.W-9, it is evident
that he is respondent in this case and also the Returned Candidate,
who has declared elected from the 08-Nala Assembly
Constituency. He denied the photographs of Ramdeo Soren and
Much Marandi on the document marked as Exhibit-02 (with
objection) and has stated that he and his party had not taken any
assistance from Ramdeo Soren and Much Marandi during
Assembly Election in 08-Nala Constituency. He has denied the
existence of Exhibit-01 and he has refuted the Pamphlet i.e.
Exhibit-02.
153. Learned counsel for the petitioner has confronted the
witness-R.W-9 on the point of variation in the Nomination Paper
Format-7 K and to which witness stated that such paper was seen
by him and handed over to him by the Returning Officer.
However, this aspect is disputed question.
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Learned counsel for the petitioner has asserted during his
argument that the certified copy of the Nomination Paper in
Format-7 K was not handed over to him till date rather he had
downloaded his Nomination Paper in format of Form-7 K from the
website of Election Commission of India and despite his best
efforts, the certified copy of the Nomination paper was not handed
over to him.
The submission of the learned counsel further reveals that
the Nomination Paper filed by him in format Form-7 K and
Nomination Paper handed over to him in Form-7 K by the
Returning Officer are different as he has filed the Nomination
Paper with Photo. However, the Nomination Paper which was
served to him by the Returning Officer do not contain his
photograph. Thereafter, there is a variation in Nomination Paper.
However, this has not caused any prejudice to the petitioner and
even the petitioner has failed to show as to what prejudice has
been caused to him. Thus, the contention raised on behalf of the
petitioner is rejected.
154. It has been held by Hon‟ble Supreme Court in the case of
Jamuna Prasad Mukhariya and Ors. vs. Lachhi Ram and Ors.
reported in 1955 (1) SCR 608:(1954) 2 SCC 306 at para-3, 6, 7, 8
and 13 as follows:-
“Para-3:- The Tribunal finds, among other things, that
Appellant 1 (1st respondent) published certain pamphlets
which contain statements listed as (a), (b), (c), (e), (f) and (g)
by the Tribunal. The Tribunal holds that these statements are
false and that the 1st appellant (1st respondent) did not
believe them to be true. It also holds that these statements
reflect on the personal character and conduct of the 6th
respondent and are reasonably calculated to prejudice his
prospects in the election. These findings were contested and
the learned counsel for the appellants contended that the
attack was on the public and political character of the 6th102
respondent and was a legitimate attack. We do not intend to
examine this as a court of appeal because this is a special
appeal and all we are concerned to see is whether a Tribunal
of reasonable and unbiased men could judicially reach such
a conclusion. We have had some of these pamphlets read out
to us and we are of the opinion that the conclusion of the
Tribunal is one which judicial minds could reasonably reach.
We decline to examine the matter further in special appeal.
Under the law the decision of the Tribunal is meant to be
final. That does not take away our jurisdiction but we will
only interfere when there is some glaring error which has
resulted in a substantial miscarriage of justice. On those
findings a major corrupt practice on the part of the 1st
respondent (1st appellant here) under Section 123(5) of the
Representation of the People Act, 1951 is established.
Para-6:- In addition to these findings, the Tribunal found that
both the appellants committed an illegal practice within the
meaning of Section 125(3) in that they issued a leaflet and a
poster which did not have the name of the printer on them.
This is a pure question of fact.
Para-7:- The result of committing any corrupt practice is that
the election of the candidate is void under Section 100(2)(b).
It is not necessary to prove that the result of the election was
materially affected thereby because clause (b) is an
alternative that stands by itself. All that need be proved is
that a corrupt practice has been committed, and that the
Tribunal finds to be the fact. The Tribunal was accordingly
justified in declaring the election of the first appellant to be
void.
Para-8:- In addition to this the Tribunal found that the
corrupt practice committed by the second appellant
(Respondent 2) also materially affected the result of the
election. This was challenged but we need not go into that
because the finding that the second appellant committed a
minor corrupt practice and also an illegal practice is clear
and so his case falls under clause (a) of sub-section (2) of
Section 100.
Para-13:- We set aside this part of the order. The result is
that the appeal fails insofar as it attacks the Tribunal’s
declaration voiding the election of the two appellants but
succeeds against that part of the order which declares the
6th and 7th respondents to have been elected. In the103
circumstances there will be no order about costs in either
Court.‖
155. However, the above judgment is not applicable in the case
of the petitioner as in the above case corrupt practice by the
Returned Candidate was proved but in the present case the
petitioner has failed to prove corrupt practice against the
Respondent.
156. It has been held by Hon‟ble Supreme Court in the case of
Biraji Alias Brijraji and Anr. vs. Surya Pratap and Ors. reported
in (2020) 10 SCC 729 at para-8 and 11 as follows:-
“Para-8:- Having heard the learned counsel on both sides,
we have perused the impugned orders [Biraji v. Surya
Pratap, 2013 SCC OnLine All 14640] , [Biraji v. Surya
Pratap, 2013 SCC OnLine All 14641] and other material
placed on record. The suit in Original Suit No. 107 of 2010 is
filed for cancellation of registered adoption deed and for
consequential injunction orders. In the adoption deed itself,
the ceremony which had taken place on 14-11-2001 was
mentioned, hence it was within the knowledge of the
appellant-plaintiffs even on the date of filing of the suit. In
the absence of any pleading in the suit filed by the
appellants, at belated stage, after evidence is closed, the
appellants have filed the application to summon the record
relating to leave/service of Ramesh Chander Singh on 14-11-
2001 from the Rajput Regiment Centre, Fatehgarh. It is
fairly well settled that in absence of pleading, any amount of
evidence will not help the party. When the adoption
ceremony, which had taken place on 14-11-2001, is
mentioned in the registered adoption deed, which was
questioned in the suit, there is absolutely no reason for not
raising specific plea in the suit and to file application at
belated stage to summon the record to prove that the second
respondent Ramesh Chander Singh was on duty as on 14-11-
2001. There was an order from the High Court for
expeditious disposal of the suit and the application which
was filed belatedly is rightly dismissed by the trial court and
confirmed by the Revisional Court and the High Court.
Para-11:- In our view the reasons recorded in the orders
passed by the trial court, as confirmed by the Revisional Court
and High Court are valid and are in accordance with the104
settled principles of law. It is clear from the conduct of the
appellants, that in spite of directions from the High Court, for
expeditious disposal of the suit, appellant-plaintiffs were trying
to protract the litigation.‖
157. It has been held by Hon‟ble Supreme Court in the case of
Lalit Kishore Chaturvedi vs. Jagdish Prasad Thada and Ors.
reported in AIR 1990 SC 1731: 1990 (Supp) SCC 248 at para-9
and 10 as follows:-
“Para-9:- Similarly even though it was pleaded that the
leaflets were false but there is no whisper if the appellant
believed it to be false or did not believe it to be true. The
petition is silent on the vital aspects if any meeting took place
on March 1, 1985 and whether the Congress M.P.
participated in it. Merely pleading false, more statement of
law than fact, without necessary factual foundation could not
be said to give rise to any triable issue. Attempt was made to
argue that even if the first part of speech was taken to be
correct the second part using the words ―inke‖ and
―inhone‖ clearly referred to personal character of the
candidate and that being false a triable issue arose.
Assistance was sought from observations, shorn of their
context, in Avtar Singh Brar v. Tej Singh [(1984) 1 SCC 752
: (1984) 2 SCR 415] and Manubhai Nandlal
Amersey v. Popat Lal Manilal Joshi [(1969) 1 SCC 372 :
(1969) 3 SCR 217] in support of the submission that even
without mention of name of candidate it may be established
that it related to him. True, but that is at later stage, stage
when evidence is led in support of the petition. What is
germane in this petition is if the averments made in this
petition prima facie raised any cause of action. Extract in
first part of the leaflet is either correct or false. For either
necessary averments are missing. If the first part is omitted
then second does not make any sense. And to make it
intelligible if the top of the leaflet is read with last part then
it refers to Congress party and not to candidate. If the first
part, namely, the speech was correct then the second part
becomes an opinion and not a statement of fact as was held
in Kumar Nand v. Brijmohan Lal Sharma [(1967) 2 SCR 127
: AIR 1967 SC 808 : 1967 Cri LJ 823] . In either case the
pleadings were wholly vague and insufficient to raise any
adjudicatory issue. Averments in paragraph 3(j) relating to
distribution and circulation did not remove the defect in105
pleadings under Section 123(4). In the absence of denial of
meeting on March 1, 1985, and necessary averments about
the knowledge of appellant that the leaflet was false, which
he believed to be false, or did not believe it to be true, the
respondent could not have succeeded even if the appellant
would not have put in appearance, therefore it is squarely
covered by the principle laid down in Azhar Hussain
case [1986 Supp SCC 315] . Mere allegations that the
appellant got a leaflet published which was false or it was
false to the knowledge of the appellant did not meet the
requirements of Section 83(1)(b). It was neither precise
statement of fact nor furnishing of material facts or
particulars as far as possible. Even this much was not said
that no meeting took place on March 1, 1985. No facts or
circumstances were mentioned to give even the haziest
picture for the basis of averment that the leaflet was false to
the knowledge of the appellant or that he did not believe it to
be true.
Para-10:- Effort was made to distinguish Hardwari Lal
case [(1972) 1 SCC 214 : (1972) 2 SCR 742] and Azhar
Hussain case [1986 Supp SCC 315] by urging that the leaflet
or pamphlets were not produced in these cases whereas it
was made annexure to the petition therefore it became a part
of pleading under Section 83(2). May be, but it did not do
away with mandatory requirements of Section 83(1)(b). Even
assuming it to be so could the leaflet on its own without
necessary averment in the petition raise any triable issue? As
observed earlier it did not. If there was no pleading that the
speech delivered by Shri Dhariwal was not made on March 1
then no evidence could be led on it. And if that is omitted,
then the second part irrespective of evidence could not be
said to refer to personal character of the Congress
candidate. In Azhar Hussain case [1986 Supp SCC 315] a
poster published painting rival candidate as supporter of
Khalistan and in conspiracy with terrorists was found to be
vague not because poster was not produced but because the
petitioner failed to disclose names of relevant persons who
were associated with its distribution etc.‖
158. It has been held by Hon‟ble Supreme Court in the case of
Laxmi Narayan Nayak vs. Ramratan Chaturvedi and Ors.
reported in (1990) 2 SCC 173 at para-5, 23 and 24 as follows:-
106
“Para-5:- This Court in a catena of decisions has laid down
the principles as to the nature of pleadings in election cases,
the sum and substance of which being:
(1) The pleadings of the election petitioner in his
petition should be absolutely precise and clear containing
all necessary details and particulars as required by law
vide Dhartipakar Madan Lal Agarwal v. Rajiv
Gandhi [1987 Supp SCC 93] and Kona Prabhakara
Rao v. M. Seshagiri Rao [(1982) 1 SCC 442] .
(2) The allegations in the election petition should
not be vague, general in nature or lacking of materials or
frivolous or vexatious because the court is empowered at
any stage of the proceedings to strike down or delete
pleadings which are suffering from such vices as not
raising any triable issue vide Manphul Singh v. Surinder
Singh [(1973) 2 SCC 599: (1974) 1 SCR 52] , Kona
Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC 442]
and Dhartipakar Madan Lal Agarwal v. Rajiv
Gandhi [1987 Supp SCC 93] .
(3) The evidence adduced in support of the
pleadings should be of such nature leading to an
irresistible conclusion or unimpeachable result that the
allegations made, have been committed rendering the
election void under Section 100 vide Jumuna Prasad
Mukhariya v. Lachhi Ram [(1955) 1 SCR 608: AIR 1954
SC 686] and Rahim Khan v. Khurshid Ahmed [(1974) 2
SCC 660] .
(4) The evidence produced before the court in
support of the pleadings must be clear, cogent,
satisfactory, credible and positive and also should stand
the test of strict and scrupulous scrutiny vide Ram Sharan
Yadav v. Thakur Muneshwar Nath Singh [(1984) 4 SCC
649] .
(5) It is unsafe in an election case to accept oral
evidence at its face value without looking for assurances
for some surer circumstances or unimpeachable
documents vide Rahim Khan v. Khurshid Ahmed [(1974)
2 SCC 660] , M. Narayana Rao v. G. Venkata
Reddy [(1977) 1 SCC 771: (1977) 1 SCR 490] , Lakshmi
Raman Acharya v. Chandan Singh [(1977) 1 SCC 423:
(1977) 2 SCR 412] and Ramji Prasad Singh v. Ram Bilas
Jha [(1977) 1 SCC 260] .
107
(6) The onus of proof of the allegations made in the
election petition is undoubtedly on the person who assails
an election which has been concluded vide Rahim
Khan v. Khurshid Ahmed [(1974) 2 SCC 660] , Mohan
Singh v. Bhanwarlal [(1964) 5 SCR 12: AIR 1964 SC
1366] and Ramji Prasad Singh v. Ram Bilas Jha [(1977)
1 SCC 260] .
Para-23:- According to Section 123 (1)(A)(b)(ii) of the Act,
any gift, offer or promise by a candidate or his agent or by
any other person with the consent of a candidate or his
election agent of any gratification, to any person
whomsoever, with the object, directly or indirectly of
inducing an elector to vote or refrain from voting at an
election is a corrupt practice. See Harjit Singh Mann v. S.
Umrao Singh [(1980) 1 SCC 713] .
Para-24:- It is an accepted principle that an election petition
where corrupt practices are imputed must be regarded as
proceedings of a quasi-criminal nature wherein strict proof
is necessary. Since, a charge of corrupt practices, the
consequence of which is not only to render the election of the
returned candidate void, but in some cases to impose upon
him a disqualification must be proved on appraisal of the
evidence adduced by both the parties particularly by the
election petitioner who assails the election of a returned
candidate. This principle has been reiterated and approved
in a series of decision. See Manphul Singh v. Surinder
Singh [(1973) 2 SCC 599: (1974) 1 SCR 52] , Rahim
Khan v. Khurshid Ahmed [(1974) 2 SCC 660] , M. Narayana
Rao v. G. Venkata Reddy [(1977) 1 SCC 771: (1977) 1 SCR
490] , Ram Sharan Yadav v. Thakur Muneshwar Nath
Singh [(1984) 4 SCC 649] , Ramji Prasad Singh v. Ram
Bilas Jha [(1977) 1 SCC 260] and Lalroukung v. Haokholal
Thangjom [41 ELR 35 (SC)] .‖
159. It has been held by Hon‟ble Supreme Court in the case of
H.D. Revanna vs. G. Puttaswamy Gowda and Ors.. reported in
(1999) 2 SCC 217 at para-14 to 17, 22 and 26 as follows:-
“Para-14. The argument is no doubt attractive. But the
relevant provisions in the Act are very specific. Section 86
provides for dismissal of an election petition in limine for
non-compliance with Sections 81, 82 and 117. Section 81
relates to the presentation of an election petition. It is not the108
case of the appellant before us that the requirements of
Section 81 were not complied with though in the High Court,
a contention was urged that a true copy of the election
petition was not served on the appellant and thus the
provisions of Section 81 were not complied with. Sections 82
and 117 are not relevant in this case. Significantly, Section
86 does not refer to Section 83 and non-compliance with
Section 83 does not lead to dismissal under Section 86. This
Court has laid down that non-compliance with Section 83
may lead to dismissal of the petition if the matter falls within
the scope of Order 6 Rule 16 or Order 7 Rule 11 CPC.
Defect in verification of the election petition or the affidavit
accompanying the election petition has been held to be
curable and not fatal.
Para-15:- In Murarka Radhey Shyam Ram Kumar v. Roop
Singh Rathore [AIR 1964 SC 1545 : (1964) 3 SCR 573] a
Constitution Bench has held in unmistakable terms that a
defect in the verification of an election petition as required
by Section 83(1)(c) of the Act was not fatal to the
maintainability of the petition and that a defect in the
affidavit was not a sufficient ground for dismissal of the
petition. Another Constitution Bench held in Ch
Subbarao v. Member, Election Tribunal, Hyderabad [AIR
1964 SC 1027 : (1964) 6 SCR 213] that even with regard to
Section 81(3), substantial compliance with the requirement
thereof was sufficient and only in cases of total or complete
non-compliance with the provisions of Section 81(3), it could
be said that the election petition was not one presented in
accordance with the provisions of that part of the Act.
Para-16:- It is the said principle of substantial compliance
which was adopted in K.M. Mani v. P.J. Antony [(1979) 2
SCC 221] . Reliance has rightly been placed thereon by
learned counsel for the respondent.
Para-17:- In F.A. Sapa v. Singora [(1991) 3 SCC 375] this
Court held that a defect in the verification of the petition as
well as a defect in the affidavit can be cured and it is not
fatal to the maintainability of the petition. Neither
in Virendra Kumar Saklecha v. Jagjiwan [(1972) 1 SCC 826]
nor in L.R. Shivaramagowda v. T.M. Chandrashekar [(1999)
1 SCC 666 : (1998) 6 Scale 361] this Court went to the
extent of holding that the election petition should be
dismissed in limine for a deficiency in the affidavit or
verification. In fact, the question was expressly left open in
the former case and it did not arise in the latter.
109
Para-22:- The third contention of learned counsel for the
appellant relates to the allegations of corrupt practices. We
are unable to accept his contention that they are vague and
do not contain material facts. The High Court has extracted
the relevant portions of the election petition which deal with
corrupt practices. After perusing the entire petition, the High
Court has observed as follows:
―Therefore, from a perusal of these and other
paragraphs of the election petition, it appears that the
petitioner has stated about the corrupt practices alleged to
have been committed or practised by the first respondent.
After a perusal of the grounds taken in the election petition, I
find force in the contention of the learned counsel for the
petitioner that necessary facts constituting the cause of
action for invalidating the election and the corrupt practices
committed by Respondent 1 have been substantially pleaded.
The allegations made in the election petition may be true or
false, but it is not possible to hold that the election petition
does not disclose any material fact or give the material
particulars of any of the corrupt practices. It is required to
be stated that even if the court is satisfied that in respect of
one of the corrupt practices alleged, material facts and full
particulars thereof have not been stated, still the election
petition cannot be thrown out at the threshold, if in respect of
other corrupt practices, the material facts and full
particulars have been given in accordance with the
requirement of Section 83(1) of the Act. As rightly argued by
the learned counsel for the petitioner, the contents of the
election petition are to be read as a whole and not to disjoint
them from the context. They cannot be read in a truncated
manner. If this test is applied to the averments made in paras
2 and 3 of the election petition, it will be quite clear that
these paragraphs, taken as a whole, relate to the allegations
regarding the commission of the corrupt practice under
Section 123 of the Act and also with regard to the other
irregularities which invalidates the election of Respondent
1.‖
We are entirely in agreement with the aforesaid view
expressed by the High Court.
Para-26:- Learned counsel for the appellant has drawn our
attention to Dharamvir v. Amar Singh [(1996) 3 SCC 158] .
A Bench of two Judges held that sub-sections (2) and (7) of
Section 123 of the Act are applicable only to cases of corrupt
practices indulged at the stage prior to the casting of the
votes and not at the post-voting stage. The facts in the case
110
were entirely different. It was also pointed out in the
judgment that the election and counting were over in that
case prior to insertion of Sections 128(8) and 135-A(d) of the
Act and those provisions were not retrospective in operation
and therefore not applicable to the facts of the case. In the
present case, the election was itself held only in 1994 long
after the insertion of the said provisions and the ruling has
therefore no applicability in this case.‖
160. It has been held by Hon‟ble Supreme Court in the case of
Hari Shanker Jain vs. Sonia Gandhi reported in (2001) 8 SCC
233 at para-4, 5, 10, 23, 24 and 25 as follows:-
“Para-4:- At the hearing of these appeals, the two election
petitioners, appellants in this Court, appeared in person and
each of them addressed this Court at length. Shri Milon
Banerjee, the learned Senior Counsel ably assisted by Shri
Gaurab Banerjee appearing for the respondent, supported
the impugned order of the High Court assigning same
additional reasons in support thereof. The following
questions arise for decision in this appeal:
(1) Whether a designated Election Judge of the High
Court can entertain and decide a plea relating to validity of
any law?
(2) Whether the plea that a returned candidate is not a
citizen of India can be raised in an election petition before
the High Court?
(3) Whether a plea questioning the citizenship of the
returned candidate is entertainable by the High Court
hearing an election petition in spite of the returned candidate
holding a certificate of citizenship granted under Section
5(1)(c) of the Citizenship Act?
(4) Whether on the pleadings of the two election
petitioners, a cause of action and a triable issue was raised
which should have been put to trial calling upon the
respondent to file her written statement?
We proceed to deal with these issues.
Para-5:- Article 329 of the Constitution provides as under:
―329. Bar to interference by courts in electoral matters.–
Notwithstanding anything in this Constitution–
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under Article
111
327 or Article 328, shall not be called in question in any
court;
(b) no election to either House of Parliament or to the
House or either House of the Legislature of a State shall be
called in question except by an election petition presented to
such authority and in such manner as may be provided for by
or under any law made by the appropriate legislature.‖
Para-10:-. The learned designated Election Judge was not,
therefore, right in laying down as a wide and general
proposition of law, that in an election petition question of
validity of a statute cannot be gone into at all.
Para-23:- Section 83(1)(a) of RPA, 1951 mandates that an
election petition shall contain a concise statement of
the material facts on which the petitioner relies. By a series
of decisions of this Court, it is well settled that the material
facts required to be stated are those facts which can be
considered as materials supporting the allegations made. In
other words, they must be such facts as would afford a
basis for the allegations made in the petition and would
constitute the cause of action as understood in the Code of
Civil Procedure, 1908. The expression ―cause of action‖ has
been compendiously defined to mean every fact which it
would be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of court. Omission
of a single material fact leads to an incomplete cause of
action and the statement of claim becomes bad. The function
of the party is to present as full a picture of the cause of
action with such further information in detail as to make the
opposite party understand the case he will have to meet.
(See Samant N. Balkrishna v. George Fernandez [(1969) 3
SCC 238 : (1969) 3 SCR 603] , Jitendra Bahadur
Singh v. Krishna Behari [(1969) 2 SCC 433] .) Merely
quoting the words of the section like chanting of a mantra
does not amount to stating material facts. Material facts
would include positive statement of facts as also positive
averment of a negative fact, if necessary. In V.S.
Achuthanandan v. P.J. Francis [(1999) 3 SCC 737] this
Court has held, on a conspectus of a series of decisions of
this Court, that material facts are such preliminary facts
which must be proved at the trial by a party to establish
existence of a cause of action. Failure to plead ―material
facts‖ is fatal to the election petition and no amendment of
the pleadings is permissible to introduce such material facts
after the time-limit prescribed for filing the election petition.
112
Para-25:- There are two features common to both the
election petitions. Firstly, both the petitions are verified as
―true to personal knowledge‖ of the two petitioners
respectively which is apparently incorrect as the very tenor
of pleadings discloses that any of the petitioners could not
have had personal knowledge of various facts relating to the
respondent personally and during the course of hearing we
had put this across to the two petitioners and they responded
by submitting only this much that the verification if incorrect
was capable of being cured. The second common feature in
the two petitions is that there are bald assertions made about
the Italian law without stating what is the source of such law
as has been pleaded by the election petitioners or what is the
basis for raising such pleadings. These averments also have
been verified as ―true to my knowledge‖ by each of the
election petitioners, a position wholly unacceptable.‖
161. It has been held by Hon‟ble Supreme Court in the case of
Kailash vs. Nanhku and Ors. reported in 2005 (4) JLJR 1 (SC) at
para-2, 16, 43, 44 and 45 as follows:-
“Para-2:-The appellant was served with the summons,
accompanied by a copy of the election petition, requiring
his appearance before the Court on 6.4.2004. On the
appointed day, the appellant appeared through his
counsel and sought for one month’s time for filing the
written statement. The Court allowed time till 13.5.2004
for filing the written statement. On 13.5.2004, the
appellant again filed an application seeking further time
for filing the written statement on the ground that copies
of several documents were required to be obtained. The
Court adjourned the hearing to 3.7.2004 as, in between,
from 13.5.2004 to 2.7.2004, the High Court was closed for
summer vacation. On 22.6.2004, appellant’s advocate’s
nephew expired. However, the written statement was
drafted and kept ready for filing. The registered clerk of
the advocate was deputed for filing the same in the Court
on the appointed day. The clerk reached Allahabad, the
seat of the High Court, from Gazipur where the appellant
and his advocate resided. On 1.7.2004, that is, two days
prior to the day of hearing, the affidavit of the appellant
annexed with the written statement, was sworn in at
Allahabad. However, (as is later on stated), on account of113
lack of understanding on the part of the registered clerk,
the written statement could not be filed on 3.7.2004 but
the same was filed on 8.7.2004 accompanied by an
application for condonation of delay in filing the written
statement briefly stating the reasons set out hereinbefore.
On 23.8.2004, the High Court rejected the application
filed by the appellant and refused to take the written
statement on record for the reason that the same was filed
beyond a period of 90 days from the date of service of
summons, the period of limitation as provided by the
Proviso to Rule 1 of Order VIII of the Code of Civil
Procedure, 1908 (hereinafter ‘the CPC’, for short), as
introduced by Act 22 of 2002 with effect from 1.7.2002.
Feeling aggrieved by the said order, the winning
candidate i.e. the defendant-respondent before the High
Court, has filed this appeal by special leave.
Para-16:- Once we are clear about the meaning of the
word ‘trial’ in the context of election petition, certain
consequences follow. Sub-section (6) of Section 86 of the
Act would empower the High Court trying an election
petition to adjourn the trial beyond the following day if
necessary and for reasons to be recorded. The filing of a
written statement being a stage in the trial of an election
petition, this provision would empower the High Court to
grant a reasonable time for filing of a written statement
though for reasons to be recorded. The availability of this
power finds support from Rules 5 and 12 of the High
Court Rules. Under Rule 5, the High Court has power to
fix a date for filing the written statement which power
would include the power to fix such date not merely once
but again and again depending on the discretion of the
High Court. Power to extend time for filing the written
statement being a matter of practice and procedure the
High Court would be within its power to give such
directions in that regard as it shall consider just and
expedient within the meaning of Rule 12. This discretion
vested in the Court by Rules made under Article 225 for
purposes of any special act would not be controlled by the
proviso to sub-rule (1) of Order VIII of the CPC.
Para-43:-The extension of time shall be only by way of
exception and for reasons to be recorded in writing,
howsoever brief they may be, by the court. In no case, the
defendant shall be permitted to seek extension of time114
when the court is satisfied that it is a case of laxity or
gross negligence on the part of the defendant or his
counsel. The court may impose costs for dual purpose: (i)
to deter the defendant from seeking any extension of time
just for asking and (ii) to compensate the plaintiff for the
delay and inconvenience caused to him.
Para-44:-However, no straitjacket formula can be laid
down except that the observance of time schedule
contemplated by Order VIII Rule 1 shall be the rule and
departure therefrom an exception, made for satisfactory
reasons only. We hold that Order VIII Rule 1, though
couched in mandatory form, is directory being a provision
in the domain of processual law.
Para-45:-We sum up and briefly state our conclusions as
under:-
(i) The trial of an election petition commences
from the date of the receipt of the election petition by the
Court and continues till the date of its decision. The filing
of pleadings is one stage in the trial of an election
petition. The power vesting in the High Court to adjourn
the trial from time to time (as far as practicable and
without sacrificing the expediency and interests of
justice) includes power to adjourn the hearing in an
election petition affording opportunity to the defendant to
file written statement. The availability of such power in
the High Court is spelled out by the provisions of
the Representation of the People Act, 1951 itself and
Rules made for purposes of that Act and a resort to the
provisions of the CPC is not called for.
(ii) On the language of Section 87(1) of the Act, it is clear
that the applicability of the procedure provided for the
trial of suits to the trial of election petitions is not
attracted with all its rigidity and technicality. The rules
of procedure contained in the CPC apply to the trial of
election petitions under the Act with flexibility and only
as guidelines.
(iii) In case of conflict between the provisions of
the Representation of the People Act, 1951 and the Rules
framed thereunder or the Rules framed by the High Court
in exercise of the power conferred by Article 225 of the
Constitution on the one hand, and the Rules of Procedure
contained in the CPC on the other hand, the former shall
prevail over the latter.
115
(iv) The purpose of providing the time schedule for filing
the written statement under Order VIII, Rule 1 of CPC is
to expedite and not to scuttle the hearing. The provision
spells out a disability on the defendant. It does not
impose an embargo on the power of the Court to extend
the time. Though, the language of the proviso to Rule 1
of Order VIII of the CPC is couched in negative form, it
does not specify any penal consequences flowing from the
non-compliance. The provision being in the domain of
the Procedural Law, it has to be held directory and not
mandatory. The power of the Court to extend time for
filing the written statement beyond the time schedule
provided by Order VIII, Rule 1 of the CPC is not
completely taken away.
(v) Though Order VIII, Rule 1 of the CPC is a part of
Procedural Law and hence directory, keeping in view the
need for expeditious trial of civil causes which persuaded
the Parliament to enact the provision in its present form, it
is held that ordinarily the time schedule contained in the
provision is to be followed as a rule and departure
therefrom would be by way of exception. A prayer for
extension of time made by the defendant shall not be
granted just as a matter of routine and merely for asking,
more so when the period of 90 days has expired. Extension
of time may be allowed by way of an exception, for
reasons to be assigned by the defendant and also be
placed on record in writing, howsoever briefly, by the
Court on its being satisfied. Extension of time may be
allowed if it was needed to be given for the circumstances
which are exceptional, occasioned by reasons beyond the
control of the defendant and grave injustice would be
occasioned if the time was not extended. Costs may be
imposed and affidavit or documents in support of the
grounds pleaded by the defendant for extension of time
may be demanded, depending on the facts and
circumstances of a given case.‖
162. It has been held by Hon‟ble Supreme Court in the case of
Mercykutty Amma vs. Kadavoor Sivadasan, reported in (2004) 2
SCC 217 at para-20, 21, 24, 27, 28, 29, 31, 32 and 33 as follows:-
―Para-20:- In terms of sub-section (4) of Section 123,
corrupt practices may be committed by: (a) the116
candidate; (b) his agent, that is to say – (i) an election
agent, (ii) a polling agent, (iii) any person who is held to
have acted as an agent in connection with the election
with the consent of the candidate; (c) by any other person
with the consent of the candidate or his election agent.
Para-21:- The categories of agents enumerated in sub-
clauses (i) and (ii) of clause (b) are to be notified by the
candidate, before the statutory authorities. Such agents,
thus, are not only to the appropriate authorities but also
to his opponents and other persons concerned. However,
so far as category (iii) is concerned, the name of such
agent is not required to be notified. He must have an
express or implied authority to act on behalf of the
candidate. For the purpose of proving corrupt practices
on the part of such agent, there would not be any material
difference between the third category of ―agent‖ or ―any
other person‖ inasmuch as in both the cases consent of
the candidate being the material factor, would be
required to be pleaded and proved. Thus, the appellant
was required to prove that the alleged corrupt practices
were committed by the aforementioned Marydasan and
Vellimon Vijayanandan with the consent and knowledge
of the elected candidate. The first respondent herein, as
noticed hereinbefore, in his written statement denied or
disputed that a pamphlet has been published defaming the
appellant herein at his instance or with his knowledge or
consent. The appellant sought to prove such consent on
the part of the first respondent vis-à-vis Marydasan on
the ground that not only the same was printed in Karthika
Press but the expenditure incurred by Respondent 1 on
the printing and publishing thereof was intimated to the
Election Commission in his election expenditure account.
Para-24:- It is, therefore, clear that the evidence of the
said witness is not conclusive on the question that
offending material was printed and published by Karthika
Press or the expenditure therefor was borne by
Respondent 1.
Para-27:- Allegations of corrupt practices are quasi-
criminal charges and the proof that would be required in
the support thereof would be as in a criminal charge. The
charges of corrupt practices are to be equated with
criminal charges and proof thereof would be not
preponderance of probabilities as in civil action but proof
beyond reasonable doubt as in a criminal trial. (See117
Surinder Singh v. Hardial Singh (1985) 1 SCC 91 :
(1985) 1 SCR 1059).
Para-28:- From the materials on record, therefore, in
our opinion, it has not been proved that the offending
article was printed and published with the consent and
knowledge of the first respondent herein.
Para-29:- Admittedly, Shri Marydasan was not issued
any notice. He was not given any opportunity to cross-
examine the witnesses examined on behalf of the
appellant or adduce evidence on his own behalf.
Para-31:- The requirement to apply the provisions of
Section 99 is in respect of a person who is not a party to
the proceeding. The statute mandates that before a
person is named as having indulged in corrupt practices
he must be given the same opportunity which is given to a
party to the petition. By reason of such a notice and
giving an opportunity to the noticee to cross-examine the
witnesses examined on behalf of the parties to the said
petition and examining witnesses on behalf of his defence,
he is placed in the same position as that of a party in the
petition. (See: Ramesh Yeshwant Prabhoo (Dr.) v.
Prabhakar Kashinath Kunte ((1996) 1SCC 130)).
Para-32:- Naming of a person as having indulge in
corrupt practices has serious consequences. A person
indulged in corrupt practices whether party to the
petition in terms of Section 82 or subsequently receives a
notice in terms of Section 99 would stand on the same
footing having regard to the provision contained in
Section 8-A of the Act. Such a person may not be a
necessary party within the meaning of Section 82 of the
Act but it is beyond any cavil that no finding could be
recorded by naming such a person unless the mandatory
provisions of Section 99 are complied with. (See:
Patangrao Kadam v. Prithviraj Sayajirao Yadav
Deshmukh ((2001) 3SCC 594.).
Para-33:- Even if Marydasan was agent of the first
respondent within the meaning of Section 123 of the Act,
the High court was required to comply with the
aforementioned statutory mandate. It has not been
disputed that the provisions of Section 99 are mandatory.
Marydasan, thus, could not have been named as having
indulge himself in corrupt practices without complying
with the mandatory provisions of Section 99 of the Act.‖
118
163. It transpires from the election petition that the petitioner
has specifically pleaded in Para 14 that the Respondent got printed
Handbill/Pamphlet of Specimen of EVM Machines wherein the
seriatim of the name of the Candidates is/are photographed and
election symbols from Lucky Printing Press. However, during
evidence he has not supported this fact and has not stated anything
during the Examination-in Chief that the Respondent has printed
Handbill or Pamphlet from the Lucky Printing Press and thus, this
allegation is not proved that the Pamphlet was published from
Lucky Printing Press and therefore, the assertion of printing the
name of the petitioner at Serial No.16 and showing NOTA is not
correct.
Even P.W-2-Umesh Murmu has not stated during his
evidence that the Respondent got printed Handbill from the Lucky
Printing Press.
Thus, this assertion is not proved.
The petitioner has further pleaded in para 17 (a) of his
election petition that he learnt from Prem Kumar Hembram of
village Jhantipahari that cadre of JMM along with Sh. Sabut
Murmu came to village Jhantipahari on 15.12.2019 and distributed
the said Handbill/Pamphlet and Specimen of EVM among the
villagers in door to door campaign and organized meeting at
Chaupal and influenced the villagers by persuading them to cast
phot in Serial No.16 that any vote cast in Serial No.16 would go in
vain. However, the petitioner has not examined said Prem Kumar
Hembram during his evidence although he has given the name of
Prem Kumar Hembram in the list of witnesses which was allowed
by this Court on 02.05.2023
Similarly the petitioner further pleaded at para 17 (c) that
Priya Ranjan Baski informed him that on 17.12.2019 Ramdeo
119
Soren and Much Marandi came to village Jabardaha along with
other party workers of JMM with Specimen of EVM
demonstrating and influencing to cast their vote to his party at
Serial No.7 and influenced the villager not to cast any vote at
Serial No.16 as it will go in vain.
However, the petitioner has also not examined Priya Ranjan
Baski in support of his case during his evidence. Thus, this
allegation is also not proved.
164. It further transpires that even the petitioner has not stated
as to when he learnt from Prem Kumar Hembram regarding the
distribution of Pamphlet/Handbill on 15.12.2019 etc. and
distribution of Pamphlet/Handbill with Specimen of EVM on
17.12.2019 as to when they had informed the petitioner about the
above incident. Thus, the pleading is vague and cannot be relied
upon. Even the petitioner has not given this information to the
Deputy Commissioner, Jamtara as well as the Returning Officer,
Jamtara while filing his representation.
165. The petitioner has merely given the name of Umesh
Murmu-P.W-2 who informed him that Jaydhan Hansda and
Rupchand Hansda came to his village Jaspur on 16.12.2019 and
were distributing the Pamphlet. However, during evidence in this
Court, P.W-2-Umesh Murmu merely stated that JMM Volunteers
Jaydhan Hansda, Rupchand Hansda and others were distributing
Pamphlets. During cross-examination, he admitted that he is the
Election Agent of Santosh Hembram and he himself asserted in
para 24 and 25 to his cross-examination that he had heard
distribution of wrong Pamphlets i.e. Exhibit-01 by the Volunteers
of JMM on 16.12.2019 through the villagers but does not
remember their name. Even in para 26 he admitted and stated that
a small boy has given a Pamphlet to him but he neither knows the
120
name of the boy nor the name of his parents. He had handed over
the said Pamphlet to Santosh Hembram but he does not remember
the date of handing over the Pamphlet.
Thus, it is evident that even the P.W-2 had not seen the
distribution of Pamphlet by Jaydhan Hansda and Rupchand
Hansda rather he disclosed this fact before the petitioner like
hearsay witness/person for hearing this fact. Though he claims to
hand over the Pamphlet to the petitioner which was given to him
by a boy but he does not know the boy and the name of said boy
and thus, in this view of the matter the evidence of P.W-2-Umesh
Murmu has not supported the case of the petitioner.
166. It further reveals that neither the petitioner nor his Election
Agent P.W-2 made any complaint before the District Election
Officer-cum-Deputy Commissioner, Jamtara and Returning
Officer, Jamtara-08 Nala Assembly Constituency regarding the
distribution of Pamphlet i.e. Exhibit-01 (marked with objection) on
15.12.2019, 16.12.2019 and 17.12.2019 before any authorities i.e.
Deputy Commissioner, Jamtara or any other authority.
167. It further transpires that even in the written complaint dated
22.12.2019 given by the petitioner before the Deputy
Commissioner, Jamtara marked as „X‟ for identification, he has
not disclosed the names of Prem Kumar Hembram, Umesh Murmu
and Priya Ranjan Baski that who had informed him that the JMM
Party workers were distributing Pamphlet. Even this written
complaint was filed on 22.12.2019 i.e. after two days of
completion of election and even if, it is taken on its face value,
does not appear to be correct.
168. On the other hand Respondent-R.W-9 and his Election
Agent and R.W-11 namely Ashok Kumr Mahto have stated during
their evidence that the Respondent got printed election material
121
from Bharat Traders Press, Ranchi and which is evident from the
record called for by the petitioner in I.A No.10550 of 2022 passed
by the Co-ordinate Bench of this Court and which was submitted
by the Returning Officer-Sri Surendra Kumar before the office of
this High Court. Thus, the petitioner has failed to prove his case on
the pleading as well as even during evidence.
It is evident that Exhibit-01 can be prepared and
manufactured by any person. Even the petitioner has not examined
the owner of Lucky Printing Press and the concerned person of
Lucky Press although the mobile number of Lucky Press was
printed on Exhibit-01 and no effort was made by the petitioner to
examine the Proprietor/Owner/Manager of Lucky Press, if any.
169. The petitioner has placed much emphasis upon Exhibit-02
(marked as objection) in which some persons were shown in
keeping certain Pamphlets and which the petitioner has claimed to
have taken their photograph from his Mobile phone and got it
developed and enlarged from the nearby shop or from any shop.
However, the petitioner has not disclosed his Mobile number and
even the Mobile showing marked as Exhibit during the evidence of
the petitioner before this Court which should have been done
easily. It was the Mobile of the petitioner from which the
petitioner has claimed to have snapped the photograph of those
people on 20.12.2019 at around 3.00 p.m. i.e. on the date of
election, even the petitioner has not disclosed the name of
Shopkeeper/Studio or any other Service Provider from which the
photo (i.e. Exhibit-02) was enlarged which was taken by the
petitioner from his Mobile phone. This is also serious lacunae.
170. It has been held by Hon‟ble Supreme Court in the case of
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal reported in
(2020) 7 SCC 1 at para-81 to 85 as follows:-
122
―Para-81:- What is laid down in Section 65-B as a
precondition for the admission of an electronic record,
resembles what is provided in the second part of Section 136.
For example, if a fact is sought to be proved through the
contents of an electronic record (or information contained in
an electronic record), the Judge is first required to see if it is
relevant, if the first part of Section 136 is taken to be
applicable.
Para-82:- But Section 65-B makes the admissibility of the
information contained in the electronic record subject to
certain conditions, including certification. The certification is
for the purpose of proving that the information which
constitutes the computer output was produced by a computer
which was used regularly to store or process information and
that the information so derived was regularly fed into the
computer in the ordinary course of the said activities.
Para-83:- In other words, if we go by the requirements of
Section 136, the computer output becomes admissible if the
fact sought to be proved is relevant. But such a fact is
admissible only upon proof of some other fact, namely, that it
was extracted from a computer used regularly, etc. In simple
terms, what is contained in the computer output can be
equated to the first mentioned fact and the requirement of a
certification can be equated to the last mentioned fact,
referred to in the second part of Section 136 read with
Illustration (b) thereunder.
Para-84:- But Section 65-B(1) starts with a non obstante
clause excluding the application of the other provisions and it
makes the certification, a precondition for admissibility.
While doing so, it does not talk about relevancy. In a way,
Sections 65-A and 65-B, if read together, mix up both proof
and admissibility, but not talk about relevancy. Section 65-A
refers to the procedure prescribed in Section 65-B, for the
purpose of proving the contents of electronic records, but
Section 65-B speaks entirely about the preconditions for
admissibility. As a result, Section 65-B places admissibility
as the first or the outermost checkpost, capable of turning
away even at the border, any electronic evidence, without any
enquiry, if the conditions stipulated therein are not fulfilled.
Para-85:- The placement by Section 65-B, of admissibility as
the first or the border checkpost, coupled with the fact that a
number of ―computer systems‖ [as defined in Section 2(l) of
the Information Technology Act, 2000] owned by different
individuals, may get involved in the production of an123
electronic record, with the ―originator‖ [as defined in
Section 2(za) of the Information Technology Act, 2000] being
different from the recipients or the sharers, has created lot of
acrimony behind Section 65-B, which is evident from the
judicial opinion swinging like a pendulum.
171. Thus, in the above case, the Hon‟ble Supreme Court has put
emphasis for taking Certificate. It was incumbent upon the
petitioner to obtain the Certificate of Service Provider of the
photographer which he had obtained from the shop. The petitioner
was also required to prove the date of taking such Certificate from
the shop owner fromwhere he has taken the photograph of alleged
JMM workers from his Mobile phone otherwise such a photograph
can be prepared by means of Photo Shopping or by means of
tampering with the photographs. The petitioner further required to
prove the date of sending such photograph and Pamphlet before
the District Election Officer-cum-Deputy Commissioner, Jamtara
as well as Returning Officer, Jamtara but he failed to prove the
same. There is time gap between 20.12.2019 to 04.02.2020 i.e. the
date on which the Election Petition was filed before this Court.
The petitioner has also not named the Election Observer and the
Election Officers with whom he had tried to make complaint
through his Mobile and even he has not shown the specific time on
the date of talking with him by specific mobile number. Even the
petitioner admitted during cross-examination that he received the
complaint of distributing such Pamphlet (i.e. Exhibit-1) on
16.12.2019, 17.12.2019 but he failed to make any complaint.
172. Thus, in absence specific date of getting the photograph
i.e. Exhibit-01 and Exhibit-02 prepared coupled with the fact of
not complaining before the appropriate authority i.e. the District
Election Officer-cum Deputy Commissioner and Returning
124
Officer, this Court finds that the petitioner has failed to make
prima facie case against the respondent for distributing the
Pamphlet (i.e. Exhibit-01) through the party cadre of the JMM or
his Volunteers and also for influencing the Voter by the persons as
shown in Exhibit-02. Even P.W-2-Umesh Murmu who claims to
identify all the persons of his village Jaspur, has failed to identify
those two persons in the photograph of Exhibit-02 (marked with
objection).
173. It is well settled from the judgment of Hon‟ble Supreme
Court that corrupt practice has to be proved like a criminal trial, if
committed by any Candidate and oral evidence, particularly
coming from a tainted service cannot form the sole basis of proof
of corrupt practices.
174. It has been held by Hon‟ble Supreme Court in the case of
(Surinder Singh vs. Hardial Singh and Ors.) reported in AIR
1985 SC 89 at para 16, 23, 33, 34 and 45 as follows:-
“Para-16:- We shall now turn to the other submission of Mr
Shanti Bhushan. By a catena of decisions of this Court it has
by now been very well settled that allegations of corrupt
practice are quasi-criminal charges and the proof that would
be required in support of such allegations would be as in a
criminal charge. Mr Shanti Bhushan has canvassed that the
standard of proof required in such a case would be
dependent upon the gravity of the charge and there is no
justification to adopt the rule that in every case of allegation
of corrupt practice the standard applicable to a criminal trial
involving a grave charge like murder should be adopted. He
has drawn support from the observations of this Court in M.
Chenna Reddy v.V. Ramachandra Rao [40 ELR 390 (SC)] . It
may be pointed out here that the ratio in Chenna Reddy
case [40 ELR 390 (SC)] runs counter to the current of
judicial thought on the point. In fact, quite close in point of
time after Chenna Reddy case [40 ELR 390 (SC)] came the
case of Magraj Patodia v.R.K. Birla [(1970) 2 SCC 888 : AIR
1971 SC 1295 : (1971) 2 SCR 118] Hegde, J. indicated :
(SCC p. 895, para 14)
125
―It is true that as observed in M. Chenna Reddy v.V.
Ramachandra Rao [40 ELR 390 (SC)] that a charge of
corrupt practice cannot be equated to a criminal charge in
all respects. While the accused in a criminal case can refuse
to plead and decline to adduce evidence on his behalf and yet
ask the prosecution to prove its case beyond reasonable
doubt such is not the position in an election petition. But the
fact remains that burden of proving the commission of
corrupt practice pleaded is on the petitioner and he has to
discharge that burden satisfactorily. In doing so he cannot
depend on preponderance of probabilities. Courts do not set
at naught the apparent verdict of the electorate except on
good grounds.‖
Charges of corrupt practice have been dealt with by
this Court for over 20 years now in election appeals under
the Act. The first important case which came before this
Court was disposed of by a five-Judge Bench in the case
of Mohan Singh v. Bhanwarlal [AIR 1964 SC 1366 : (1964) 5
SCR 12] . Shah, J. (as he then was), spoke for the Court thus:
―The onus of establishing a corrupt practice is
undoubtedly on the person who sets it up, and the onus is not
discharged on proof of mere preponderance of probability,
as in the trial of a civil suit : the corrupt practice must be
established beyond reasonable doubt by evidence which is
clear and unambiguous.‖
Para-23:- It is thus clear beyond any doubt that for over 20
years the position has been uniformly accepted that charges
of corrupt practice are to be equated with criminal charges
and proof thereof would be not preponderance of
probabilities as in civil action but proof beyond reasonable
doubt as in criminal trials. We are bound by the decision of
the larger Bench in Mohan Singh case [AIR 1964 SC 1366 :
(1964) 5 SCR 12] as also by decisions of coordinate benches
and do not feel inclined to take a different view. We also find
no warrant for the contention of Mr Shanti Bhushan that a
fresh look is necessary in the matter. On the other hand we
feel advised to follow the dictum of Lord Devlin when he
observed:
―Precedents keep the law predictable and so more or
less ascertainable.‖
Lord Chancellor Hailsham very appropriately summed
up the English practice when he said in Cassell & Co.
Ltd. v. Broome [(1972) 1 All ER 801] ‖:
126
―Their Lordships regard the use of precedents (1) as
an indispensable foundation upon which to decide what is
the law and its application to individual cases. It provides at
least some degree of certainty upon which individuals can
rely in the conduct of their affairs, as well as a basis for
orderly development of legal rules. [ See Note (1966) 3 All
ER 77 : (1966) 1 WLR 1234] ‖
Para-33:- The question that has next to be considered is
whether disturbing such a meeting would also amount to
undue influence under Section 123(2) of the Act. Direct or
indirect interference or attempt to interfere with free exercise
of the electoral right by a candidate, his agent or any person
with his consent or the candidate’s election agent has been
made a corrupt practice. ―Electoral Right‖ has been defined
in Section 79(d) of the Act to mean ―the right of a person to
stand or not to stand as or to withdraw or not to withdraw
from being a candidate or to vote or refrain from voting at
any election‖. In para 5 of the election petition there is no
allegation of any threat. It is proper at this stage to refer to
the pleadings in para 6 of the election petition where it has
been pleaded:
―That later on the same day aforesaid assailants
threatened that anybody who will support or vote for
Respondent 2 shall meet the same fate as Daya Singh.
Gurdial Singh son of Tara Singh along with others created
such a terror in the village that subsequently it became very
difficult and risky for anyone to canvass for Respondent 2 in
this village.‖
Para-34:- Disturbing the meeting as alleged in para 5 of the
election petition in our view is not covered under sub-section
(2) of Section 123 of the Act and is clearly an electoral
offence dealt with by Section 127 of the Act. The allegations
contained in para 6 of the election petition would perhaps
come within Section 123(2)(a)(i) of the Act. In para 5 of the
election petition the following fact had been pleaded:
―Then Respondent 1 told them not to allow the
meeting to proceed at any cost and himself stayed behind.‖
If this statement of fact is accepted consent of the
appellant for disturbing the meeting can be found but in the
absence of any specific plea that it was appellant’s
instruction that the electors should be threatened, the facts
alleged in para 6 of the election petition cannot be accepted
to have been with the consent of the appellant. Mr Shanti127
Bhusan, learned counsel for Respondents 1 and 2 has not
disputed, and in our opinion rightly, that allegations of
corrupt practice have to be strictly pleaded with material
particulars and evidence beyond the ambit of plea would not
be permitted to be led. Though there is some oral evidence to
implicate the appellant, even for what followed the
disturbance to the meeting, we do not think in the absence of
the requisite plea such evidence can be entertained for any
effective purpose.
Para-45:- A candidate is entitled to canvass for votes. One
who is in the field to be an electoral representative is also
entitled to nourish his. constituency. As pointed out by this
Court in Bhanu Kumar Shastri case [(1971) 1 SCC 370 : AIR
1971 SC 2025 : (1971) 3 SCR 522] amelioration of
grievances of the public is innocuous and cannot be
construed against a candidate. We agree that while
nourishing is a legitimate activity, it is of paramount
importance that nourishing should not transgress the limit so
as to corrupt the electoral process. The appellant was
already in the field as a candidate for the Legislature and
was entitled to help the people in his constituency in a
legitimate way. Once the allegation that he had deposited the
amount of Rs 944 is discarded, his taking up of the cause of
Bagicha Singh for early shifting of the electric wires
overhanging the first floor of his house would not amount to
―bribe‖. At any rate, the evidence on record is only of PW
12. We do not think that evidence even if accepted as a whole
would be sufficient to establish the charge of corrupt practice
on this score. This Court has rightly indicated that oral
evidence, particularly. coming from a tainted source cannot
form the sole basis of proof of corrupt practice. In Younus
Kunju case [(1984) 3 SCC 346] it has been stated : (SCC p.
350, para 5)
―Admittedly all these witnesses were the workers of
the appellant. There is overwhelming material on the record,
and even counsel fairly admitted, that the election was fought
on party basis and there was sharp division of the electorate
on the basis of political parties. That being the position,
workers at the election with party alignment would
necessarily be political supporters of the respective
candidates and when called as witnesses they would support
their stand. Instances are not uncommon where such
witnesses support their respective candidates and their cases
even though the same be far from truth. In such
128
circumstances we do not think on the oral testimony of these
four witnesses the charge of publication, of objectionable
materials can be said to have been established.‖
175. It is further evident that the Written Statement of the
Respondent was filed on 12.10.2022 within 90 days after his
appearance after the permission of the Co-ordinate Bench vide
order dated 08.07.2022. Thus, this Court finds no illegality in
filing the Written Statement by the Respondent.
On the question of filing of Written Statement by the
Respondent is concerned, it would appear that the respondent has
appeared in this case on 18.07.2022 and the Co-ordinate Bench of
this Court had recalled the earlier order of ex-parte proceeding
dated 06.07.2022 and permitted the respondent to file the Written
Statement by allowing I.A. No.6081 of 2022 filed on behalf of the
respondent.
176. It has been held by Hon‟ble Supreme Court in the case of
Kailash vs. Nanhku and Ors. reported in 2005 (4) JLJR 1 SC that
High Court has power to fix a date for filing the Written Statement
and even the High Court has discretionary power and to extend the
time for filing the Written Statement being a matter of practice
and procedure. The discretion vested in the Court by rules made in
Article 225 for the purpose of any special Act would not be
controlled by the proviso to Rule 1 of Order VIII of CPC.
177. It has been held by Hon‟ble Supreme Court in the case of
Smt. Rani Kusum vs. Smt. Kanchan Devi and Ors. reported in
2005 (4) JLJR 53 (SC) at para-6, 10, 13 and 19 as follows:-
―Para-6:-The scope and ambit of Order VIII Rule 1 of
CPC has been examined in detail by this Court in Kailash
v. Nanhku and Ors. (2005 (4) SCC 480).
Para-10:- Order VIII, Rule 1 after the amendment casts
an obligation on the defendant to file the written statement129
within 30 days from the date of service of summons on him
and within the extended time falling within 90 days. The
provision does not deal with the power of the court and
also does not specifically take away the power of the court
to take the written statement on record though filed
beyond the time as provided for. Further, the nature of the
provision contained in Order VIII, Rule 1 is procedural. It
is not a part of the substantive law. Substituted Order
VIII, Rule 1 intends to curb the mischief of unscrupulous
defendants adopting dilatory tactics, delaying the disposal
of cases causing inconvenience to the plaintiffs and
petitioners approaching the court for quick relief and also
to the serious inconvenience of the court faced with
frequent prayers for adjournments. The object is to
expedite the hearing and not to scuttle the same. While
justice delayed may amount to justice denied, justice
hurried may in some cases amount to justice buried.
Para-13:- The processual law so dominates in certain
systems as to overpower substantive rights and substantial
justice. The humanist rule that procedure should be the
handmaid, not the mistress, of legal justice compels
consideration of vesting a residuary power in judges to
act ex debito justiciae where the tragic sequel otherwise
would be wholly inequitable. – Justice is the goal of
jurisprudence – processual, as much as substantive.
(See Sushil Kumar Sen v. State of Bihar (1975 (1) SCC
774).
Para-19:- After elaborating the purpose for introduction
of Order VIII Rule 1, this Court in Kailash’s Case (supra)
at paragraph 45 observed that no straightjacket formula
can be laid down except that observance of time schedule
contemplated by Order VIII Rule 1 shall be the rule and
departure therefrom an exception, made for satisfactory
reasons only. The conclusions have been summed up in
Para 46. The relevant portion reads as follows:
“(iv) the purpose of providing the time schedule for
filing the written statement under Order VIII Rule 1
CPC is to expedite and not to scuttle the hearing. The
provision spells out a disability on the defendant. It does
not impose an embargo on the power of the Court to
extend the time. Though the language of the proviso to
Rule 1 Order VIII CPC is couched in negative form, it
does not specify any penal consequences flowing from the130
non-compliance. The provision being in the domain of the
procedural law, it has to be held directory and not
mandatory. The power of the Court to extend time for
filing the written statement beyond the time schedule
provided by Order VIII Rule 1 CPC is not completely
taken away.
(v) Though Order VIII Rule 1 CPC is a part of
procedural law and hence directory, keeping in view the
need for expeditious trial of civil cases which persuaded
Parliament to enact the provision in its present form, it is
held that ordinarily the time schedule contained in the
provision is to be followed as a rule and departure
therefrom would be by way of exception. A prayer for
extension of time made by the defendant shall not be
granted just as a matter of routine and merely for the
asking, more so when the period of 90 days has expired.
Extension of time may be allowed by way of an exception,
for reasons to be assigned by the defendant and also be
placed on record in writing, howsoever briefly, by the
court on its being satisfied. Extension of time may be
allowed if it is needed to be given for circumstances which
are exceptional, occasioned by reasons beyond the control
of the defendant and grave injustice would be occasioned
if the time was not extended. Costs may be imposed and
affidavit or documents in support of the grounds pleaded
by the defendant for extension of time may be demanded,
depending on the facts and circumstances of a given case.”
178. Thus, in view of the discussion made above, it is evident
that the High Court can extend power in filing the Written
Statement even if it is filed beyond the statutory period. However,
in the present case, the respondent had appeared, although of
course after publication of notice in Hindi Newspaper i.e. „Dainik
Jagran‟ but his appearance can be counted from the date of
appearance before this Court and not from the date of tracking
report of registered post, which cannot be a conclusive proof of
service of notice upon any person. Therefore, the Co-ordinate
Bench has rightly permitted the respondent to file his Written
Statement and the petitioner has thus filed his Written Statement
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within time. Therefore, this Court finds no merit in the submission
of the learned counsel for the petitioner that Written Statement has
been filed beyond statutory period.
179. Learned counsel for the petitioner has made much emphasis
that evidence marked on admission by the Respondent, is against
the provisions of Order VIII Rule 2 of CPC as there is no such
pleading in the Written Statement of the respondent. However, this
Court, finds no merit in the submission as the respondent can be
permitted to adduce his evidence once he has filed his Written
Statement and he has denied the alleged handbill/pamphlet
distributed by his Volunteers or cadre of JMM party. He may not
require to give specific evidence in his Written Statement as he has
denied the fact of printing his election articles from Lucky Printing
Press, Ranchi. Although he has not made any specific pleading in
his Written Statement that his election materials/articles were
published from Bharat Traders Press, Ranchi but R.W-9 i.e. the
respondent and R.W-11 i.e. the Election Agent of the respondent
have clearly stated in the evidence that the Election Materials were
published from „Bharat Traders Press‟, Ranchi and those fact is
also evident from the documents received before this Court from
District Administration in the light of I.A. No.10550 of 2022 filed
by the learned counsel for the petitioner.
180. It further transpires that even the Hon‟ble Supreme Court in
Special Leave to Appeal (C) No(s).4574 of 2024 vide order dated
26.02.2024 has given liberty to the Respondent to raise all his
contentions at an appropriate stage before this Court.
181. It is evident from the documents marked as Exhibit-DD-I
and DD-II, DD-III, DD-IV, DD-V respectively that no complaint
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was received by the team of the Flying Squad and Sector
Magistrate during the period of posting.
Exhibit-DD-I, DD-II (marked on admission) respectively
are Flying Squad Reports of Booth No.193 to 332 & Booth No.1
to 96 which reveal that no complaint was received by the Flying
Squad Team on 20.12.2019 including Booth No.91 and 92 as
alleged by the petitioner.
Even Exhibit-DD-III, DD-IV and DD-V reveal that no
complaint of any corrupt practice or distribution of any tainted
Pamphlet was made by the petitioner or any other person.
182. It is further evident from Exhibit-E, E/1, E/2 and E/3 (on
admission) that even on the polling day nothing was found on
19.12.2019 by the Sector Magistrate namely Bishwanath Toppo,
Dr. Md. Rizwan, Dayanand Jamuda and Anmol Amar Baba of
proof of any corrupt practices.
183. Exhibit-G and G/1(on admission) are the Diary of
Presiding Officer of Booth No.91 and Booth No.92 on 20.12.2019
which also do not disclose any report of corrupt practices made by
the respondent or regarding distribution of Pamphlets i.e. Exhibit-
01 by the persons shown in photograph marked as Exhibit-02 (with
objection).
184. Exhibit-H and H/1 are the Visit Sheets of Booth No.91 and
92 by the prepared by the Presiding Officers of Booth No.91 and
Booth No.92 which also do not disclose any corrupt practices made
by the Respondent or his Volunteers or by any JMM cadre.
185. Thus, in view of the discussion made above, it is evident
that the petitioner has failed to make out any alleged corrupt
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practices as per the Act under Section 100 (1) (b) and 123 of the
R.P. Act, 1951.
186. Thus, in view of the law laid down by the Hon‟ble
Supreme Court and also discussion made above, this Court finds
that petitioner has no valid cause of action for filing the election
petition and the Respondent and his Polling Agent have not
committed any corrupt practices as stated in the election petition.
187. Thus, Issue No.2 and 3 are decided against the Petitioner
and in favour of the Respondent.
Issue No.4
188. It is evident that the Respondent had secured 61,356 votes
whereas the petitioner has secured 1769 votes only. The petitioner
has failed to prove the charges of corrupt practice against the
respondent.
Hence, this Court is of the view that the result of the
Respondent is not liable to be set aside.
Accordingly, this Issue No.4 is decided against the petitioner
and in favour of the Respondent.
Issue No.1 and 5
189. In view of the discussion made above and law laid down by
the Hon‟ble Supreme Court this Election Petition is not
maintainable and the petitioner is not entitled to the relief(s).
190. Thus, Issue No.1 and 5 are decided against the petitioner
and in favour of the respondent.
191. Accordingly, this Election Petition No.06 of 2020 is hereby
dismissed but without costs.
192. All the pending I.As., if any, stand disposed of.
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193. Let a copy of this Judgment be communicated to the
Election Commission of India, the State Election Commission and
Office of Jharkhand Vidhan Sabha and to all concerned by the
Office at once.
194. Office is directed to return the document to the parties after
keeping the photo copy of the same.
(Sanjay Prasad, J.)
Saket/-
AFR
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