- (1.) SHRI Baldev Singh Mann, claiming that he was elected as a Member of the Punjab Legislative Assembly from Dirba Assembly Constituency for three consecutive terms and had also been a Minister in the Council of Ministers in 1986-87, having lost the election to the Punjab Legislative Assembly held in February, 1992, has challenged the validity of the election of Sh. Gurcharan Singh, the returned candidate, through this election petition filed under S. 80 of the Representation of People Act, 1951 (for short, the Act), on twin grounds, viz. , (i) booth capturing; and (ii) incurring expenditure in contravention of the provisions of Section 77 of the Act.
(2.) THE election of the returned candidate can be challenged by an election petition presented in accordance with the provisions of Part VI of the Act. The grounds for declaring the election of a returned candidate to be void and the grounds for which a candidate other than the returned candidate may be declared to have been elected are contained in Sections 100 and 101 of the Act respectively. One of the grounds for declaring the election of a returned candidate as void is that any corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Section 123 mentions the corrupt pratices. The Representation of the People Act, 1950 and the Representation of the People Act, 1951 were amended by Act No. 1 of 1989 called the Representation of the People (Amendment) Act, 1988. Section 123 of the Act was amended and after clause (7) and before the Explanation, clause (8), namely, "booth capturing by a candidate or his agent or other person" was inserted. In the Explanation to Section 123, after clause (3), clause (4), namely, "for the purposes of clause (8), 'booth capturing' shall have the same meaning as in Section 135-A' was inserted. In the Statement of Objects and Reasons for which the amendments were introduced in Section 123 of the Act. "booth capturing" was made an electoral offence under Section 135-A, it was stated that booth capturing and rigging of elections had been on the increase in the recent past and to check this evil, booth capturing had been made an offence and also a corrupt practice.
(3.) THE plea that the returned candidate had committed the corrupt practice of booth capturing within the meaning of Sections 123 and 135-A of the Act, as stated in para 3 of the election petition, reads thus :- "3. That the respondent No. 1 indulged in the commission of corrupt pratice of booth capturing himself and through his agents as defined under Section 123 (8) and Section 135 A of the Act: (i) That the respondent No. 1 on 19-2-92 at about 7. 30 A. M. in the company of 50 supporters came to the Govt. High School Building at Dirba where polling booths No. 62 to 69 were located. He threatened Joginder Singh, Polling Agent of the petitioner in the presence of some electors who were present there. Those present included Sh. Vasdev son of Sh. Kulwant Rai, Sardar Jora Singh son of Sardara Singh, Maghar Singh son of Gurbachan Singh and asked him not to go inside the polling station and not to raise objections regarding the identity of persons polling the votes in place of real electors. The respondent No. 1 and some of his supporters were armed also. On this Joginder Singh refused to comply and went inside the polling station No. 62. (ii) That later at about 8 A. M. , respondent No. 1 accompanied by most of those persons, went to polling booths No. 63 to 69 one by one. He captured those booths by intimidating the polling staff and the persons ac- companying him cast vostes in place of real electors in each of the polling stations and this way about 600 votes were got cast by respondent No. 1 through the persons accompanying him. All these votes were cast in place of real electors by men and women impersonating for the real electors. And thus, the respondent No. 1 is guilty of booth capturing, as well as of corrupt practice defined under Section 123 (8) and these 600 votes are laible to be excluded from the votes polled by respondent No. 1. (iii) That at about 11. 30 A. M. , the respondent No. 1 carried about 50 persons from Dirba who are registered as electors in part No. 63 in mini trucks to village Karrial booth No. 60 situated in the building of Middle School there. These persons cast their votes as some of them are registered there also. As they were earlier residing there. Some of them cast votes impersonating for the real electors also. This was done in the presence and at the behest of respondent No. 1 and thus he is guilty of having committed the corrupt practice as defined under Section 123 (8 ). These votes are also liable to be excluded both from polling station No. 63 as well as polling station No. 60 from the votes cast in favour of respondent No. 1. (iv) That at about 12. 30 P. M. respondent No. 1 went to Kadar Nagar, Munshiwala along with about 10 others and at his behest they cast their votes at polling station No. 61. They were registerd both in the electoral rolls relating to part No. 63 Dirba as well as Part No. 61. In this village there was complete boycott and not a single vote was cast by any elector residing there as they were terrified because of posters put up in the village ostensibly on behalf of militants threatening death in case they caste their votes. These posters were put on the night between Feb. 17-18 in the village. Posters are Annexure P-1 and P-2 to this petition. These votes are liable to be excluded from the votes counted in favour of Respondent No. 1. (v) That about 2. 00 PM on 19th Feb. , 1992, the respondent No. 1 came to village Dhan-doli Khurd along with about 50 persons. They cast votes in place of electors at polling station No. 31 after capturing the booth. Polling staff was threatened and about 100 votes were cast this way. And they are liable to be excluded from votes counted in favour of respondent No. 1. (vi) That at village Shafipur Kalan polling station No. 89 Niranjan Singh a close relation (Son of mother's brother of respondent No. 1) of respondent No. I with the consent and connivance of respondent No. I arranged to cast bogus votes through impersonation in favour of respondent No. 1. This way, about 200 votes were illegally cast at this polling station in favour of respondent No. I. All these votes are liable to be excluded from the votes counted in favour of respondent No. 1. ";