@JUDGMENTTAG-ORDER
Brahma Singh Verma, J.@mdashBy means of this election petition, the election petitioner has challenged the election of the returned candidate from 13-Laxman Chowk Legislative Assembly Constituency, district Dehradun and has sought the following relief:--
(a) To declare the election of the respondent as Member of 13-Laxman Chowk Legislative Assembly Constituency, district Dehradun as null and void and further to set aside the same.
(b) Issue any further appropriate order or direction, which this Hon''ble Court may deem fit and proper on the facts and circumstances of the case.
(c) Award the cost of the election petition to the petitioner.
The petitioner is recorded in the electoral roll (voter) in the election of legislative assembly constituency 13-Laxman Chowk Assembly Constituency, district Dehradun, which was held on 21-2-2007 and he is competent to present, sign, verify and contest election petition as per Section 81 of the Representation of the People Act, 1951, therefore, he filed the present election petition.
2. The election was held on 21-2-2007 and the result after counting was declared on 27-2-2007 and that the respondent was declared as returned candidate in the said election. The election petition was filed on 11-4-2007 within a period of 45 days, i.e. within time. In the election petition, the election petitioner had arrayed the returned candidate Mr. Dinesh Aggarwal as respondent.
3. The main grounds of challenge raised in the election petition are that the respondent, his election agents and supporters with the consent of the respondent put up a hoarding in Patel Nagar, a ward of 13-Laxman Chowk Legislative Assembly Constituency, with the national flag showing the Ashok Chakra with 24 spokes of the wheel. It was done for furtherance of the prospects of the election of the respondent and in support of it, the photograph of the hoarding with the impression of the national flag and such a practice as adopted falls within the purview of the corrupt practices as provided u/s 123(3) of the Representation of the People Act, 1951, therefore, the election of the respondent is liable to be declared null and void on this ground. The petitioner has also taken a ground that the appeal (Fatwa) issued by Mufti Mohammad Salman Saheb of Darul Ulema the senior most religious leader of Northern India was distributed on 20th February 2007 during late evening hours to late night in all Masjids situated in Laxman Chowk legislative assembly in the Masjids of Muslim colony of Lohianagar, Brahampuri, Turner Road, Clementown and Majra. This Fatwa was also circulated in other Masjids and Muslim colonies. Apart from this, the returned candidate printed the pamphlets in Samay Sakshya press Dehradun through Sri Sayyed Mahtab in his favour and the same were distributed and pasted on the walls of masjids together with Fatwa on the date and time and places as specified in paragraph 6-C of the petition. Another ground has been taken in the petition is that in support of the returned candidate sponsored by the National Congress Party, a news item was published in a daily newspaper "Amar Ujala" dated 16-2-2007 from Dehradun wherein photographs of the returned candidate along with the photograph of Sri Gulam Nabi Azad, the Hon''ble Chief Minister of Jammu & Kashmir were also published whereby an appeal was made on behalf of all the Corporators of Nagar Nigam Dehradun Laxman Chowk Assembly Constituency to come in an election meeting in favour of the respondent. The corporators of Laxman Chowk Constituency belong to Bhartiya Janata Party. In fact they never consented to issue appeal to attend the meeting in support of the respondent. Such an attempt is also a corrupt practice. Another ground of challenge raised in this election petition is that the returned candidate after the election process constructed a road in his legislative assembly constituency in front of Arya Inter College, Subhash Nagar to the house of Col. Jairath. Yet another ground has been taken that an F.I.R. was also lodged by the administration and Tehsildar against the respondent. An affidavit has been filed in support of the election as well as in support of the allegations made by way of amendments made in the election petition. The election petition was presented property and security charges of Rs. 2000/- were deposited by tender in the Registry.
4. The election petition was resisted by the respondent-returned candidate by filing his written statement on 18-3-2008 wherein the allegations made in the election petition have been denied. It has been asserted by the respondent that the respondent neither himself nor his election agents put up any such hoarding at any place in furtherance of his prospects in the election as alleged in the petition. It has also been asserted that the newspaper report is the outcome of some false complaint by rival candidate and that the report of Tehsildar does not make out that alleged hoarding was made by using the national flag. It has been denied that the respondent or his agents are involved in procuring any appeal or Fatwa. It has further been denied that any such appeal was distributed by the respondent or his agents/workers with his consent in any area. The respondent has also denied that any such appeal as alleged was read out at the gate of masjid of Lohia Nagar. It has also been denied that any appeal or Fatwa was got distributed by the respondent in all Masjids, situated in Laxman Chowk constituency and specially in Masjids of Lohia Nagar, Turner Road and Majra and that any such Fatwa was got distributed by Dilshad Quereshi and Firoz Khan. It has further been denied that the respondent or his agents with the consent of respondent got distributed any leaflet allegedly printed in Samay Sakhya Press. It has also been asserted that the pleadings as raised in the election petition do not relate to any corrupt practices under the Act and that the election petitioner has not pleaded that the news was published with the consent of the respondent. It has also been denied that the respondent, his agents and workers with his consent procured the assistance of any government servants for furtherance of his election prospects. It has also been stated that it is wrong to say any construction work was initiated under the influence of the respondent after enforcement of code of conduct. It has been denied that the alleged road was constructed from Vidhayak Nidhi, but in fact the said road was constructed from the funds of P.W.D. It has also been denied that that respondent forged any entry in collusion with the alleged assistance of Engineers or the Junior Engineers. The respondent has also denied the allegations made in ground No. 6-G and asserted that the road in question near the residence of Koka Ram in Gandhi Gram was not constructed from Vidhayak Nidhi as alleged. It has been further stated that much before December 2007, a proposal had been made for the construction of the said road from Vidhayak Nidhi and that since the alleged road was not constructed from Vidhayak Nidhi, therefore, the report dated 3-1-2007 is false and frivolous. The respondent has thus denied all the allegations of corrupt practices levelled in the election petition. An affidavit has also been filed along with the written statement.
5. On the basis of the pleadings of the parties, the following Issues have been framed:
ISSUES
1. Whether the returned candidate committed corrupt practices for furtherance of the prospects of his election and the same materially affect the election as mentioned in paragraph 6 and its 5 ground Nos. 6-A, 6-C, 6D, 6-E, 6-F and 6-G of the petition? If so, its effect?
2. Whether the election of the returned candidate is void and is liable to be set-aside on the ground mentioned in paragraph 6 and its ground Nos. 6-A, 6-C, 6D, 6-E, 6-F and 6-G of the petition?
3. To what relief, if any, is the petitioner entitled?
6. The petitioner has filed ten documents including the deposit of Rs. 2000/-, which was tendered in the Court. The other documents filed on behalf of the election petitioner are copies of photograph taken by Sri Govind Mohan i.e. copy of news bearing photograph of hoarding published in daily newspaper "Dainik Jagran" dated 7-2-2007 and the FIR relating to case Crime No. 67/2007 dated 8-2-2007 containing the photographs of respondent with national flag, copy of Fatwa purported to have been issued by Mufti Mohammad Salman Saheb Darul Ulam, Deoband, complaint made by Shadab Shams, the observer of Indian Muslim League dated 20-2-2007, copy of appeal made by Sayyad Mehtab Ali, the P.C.C. member of Uttarakhand, copy of extract of daily newspaper Amar Ujala dated 16-2-2007 and the copy of joint representation whereby the five corporators raised objection dated 16-2-2007, copy of the FIR lodged by Additional Tehsildar dated 9-2-2007 pertaining to Case Crime No. 8 of 2007, copy of FIR lodged by the City Magistrate dated 3-01-2007 in Case Crime No. 4 of 2007, chart pertaining to total polling and the chart showing the votes after counting and copy of complaint submitted by ten candidates, who contested the election of 13-Laxman Chowk legislative assembly constituency dated 28-2-2007. Besides, the election petition (sic).
7. According to the petitioner, apart from the photo, which is print taken from mobile phone, others are photographs of the copies in original. The petitioner has further filed three documents on 10-12-2009 with the permission of the Court, through Civil Misc. Application No. 3366 of 2009, which are copy of the F.I.R., charge-sheet and certified copy of the order passed by C.J.M. Dehradun and copy of appeal and the original copy of the complaint of the corporators.
8. In support of the election petition, affidavit was filed on 11-4-2007, but after amendment was allowed by the Court no affidavit has been filed on the prescribed format as per Rule 94A of the Conduct of Election Rules, 1961 as prescribed in Form 25.
9. The petitioner has also led oral evidence by examining himself as P.W. 1 Shamim Alam, P.W. 2 Govind Mohan, P.W. 3 Vinod Kumar Suman, P.W. 4 Kishan Singh Negi and P.W. 5 Hafiz Mohammad Aslam Kadri.
10. The respondent has also filed documentary evidence in support of his claim, namely, letter sent by Block Development Officer Raipur Dehradun on 19-5-2008 to the respondent in respect of construction of the road and other work, letter sent by Assistant Engineer-1 PWD Dehradun regarding construction of work in Clementown area in violation of conduct code of election process, letter sent by Sri Nitya Nand Swami dated 28-9-1999 to Sri O.P. Saklani Advocate Dehradun in respect of the activities of Sri Shamim Alam, notification issued by Bar Council of U.P. dated 6-4-1997 expunging the name of Sri Shamim Alam Advocate from the roll of the Bar Council of U.P., letter issued by the Bar Council of U.P. in respect of cancellation of the registration as Advocate of the petitioner and proposal passed in the meeting of Bar Council of U.P. in respect of enrolment of Sri Shamim Alam Khan as an Advocate with Bar Council of U.P. In addition of documentary evidence, the respondent in oral evidence has examined himself as D.W. 1 and Mr. Gurmeet Singh Bagga as D.W. 2.
FINDINGS
11. Issue Nos. 1 and 2: Both these issues are interconnected and the same evidence has to be scrutinized for their disposal, therefore, they are being taken up together for decision.
12. The short controversy involved in this election petition is whether on the basis of evidence led by the election petitioner, the returned candidate-respondent can be held guilty of corrupt practices and his election to 13-Laxman Chowk Legislative Assembly Constituency can be set aside and declared as null and void on the Ground Nos. 6-A, 6-C, 6-D, 6-E, 6-F and 6-G.
13. The election petitioner in order to substantiate his claim has examined himself P.W. 1, Shamim Alam. He has only deposed that the returned candidate has installed a banner over Sethi Cloth House containing national flag with a wheel having 24 spokes. The election petitioner has filed photograph in that regard as paper No. A-3/19. The petitioner has specifically stated that one Govind Mohan (P.W. 2) had given that photograph to him. Said Govind Mohan has been examined as P.W. 2. The evidence of P.W. 2 would be relevant with regard to proof of photograph and negative if any and shall be dealt with at appropriate place. The election petitioner has also examined P.W. 3 Vinod Kumar Suman, P.W. 4 Kishan Singh Negi and P.W. 5 Hafiz Mohammad Aslam Kadri in support of his case.
14. P.W. 3, Vinod Kumar Suman, who was City Magistrate at the relevant time has stated in his statement on oath that he was Returning Officer in the Laxman Chowk constituency. A news item was published in Dainik Jagran alleging use of national flag in the election prospect by the respondent. He was asked to make an inquiry into the matter and after inquiry an FIR was lodged by Assistant Election Officer Sri Kishan Singh Negi. Regarding tender of construction of road and on the point of construction of the same from Vidhayak Nidhi, he has stated that the road in question was not constructed from Vidhayak Nidhi. This witness was cross-examined and in the cross examination, he has stated that he had not seen the banner installed and he had not seen anybody installing the banner in question. He did not collect any information from the publisher of the newspaper.
15. P.W. 4, Kishan Singh Negi has only proved the lodging of First Information Report against the respondent. His evidence is of no avail to the election petitioner on the point of corrupt practice.
16. P.W. 5 is Hafiz Mohd. Aslam Kadri, who was Imam in the Masjid. He has stated that the power to issue Fatwa is vested with Mufti and no candidate can issue a Fatwa. His evidence is also of no relevance on the matter in issue.
17. Learned counsel appearing on behalf of the petitioner Mr. Sudhir Kumar has contended that the returned candidate has committed corrupt practices by placing hoarding along with national flag with Ashok Chakra having 24 spokes and thus misled the voters of the constituency and also got Fatwa distributed, which was issued by Mufti Mohammad Salman Saheb, Darul Ulam, Deoband and thus voters were misled on religious basis and is also a corrupt practice within the meaning of the Representation of the People Act.
18. Learned counsel for the petitioner further contended that to prove the fact that hoarding was placed above the house of Sethi Cloth House in support of the congress photograph was taken by P.W. 2 Govind Mohan. P.W. 2 in his statement on oath has stated that on 5-2-2007 at 1-28 p.m. he took the photograph from his mobile No. 9412057767 and in paragraph No. 9 of his statement on oath, this witness has stated that at the time when the hoarding was affixed, the returned candidate and his active supporter Gurmeet Singh Bagga and other workers were also present and that in the hoarding, he saw national flag with Ashok Chakra in the centre and that P.W. 5 Hafiz Mohd. Aslam Kadri was examined to prove the fact that Fatwa was distributed by the returned candidate and his supporters and the petitioner supported his case in the cross-examination. P.W. 4 Kishan Singh Negi was examined to prove the fact that he lodged the F.I.R. regarding installation of national flag.
19. Learned counsel appearing for the election petitioner has placed reliance upon the judgment of the Apex Court in the case of
20. Learned counsel for the election petitioner further placed reliance upon a Division Bench judgment rendered by the Allahabad High Court in the case of
21. Learned counsel for the election petitioner has relied upon the Explanation 2 appended to Section 2 of the Prevention of Insults to National Honour Act, 1971, which provides as under:-
Explanation 2.--The expression "Indian National Flag" includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag or of any part or parts thereof, made of any substances or represented on any substance.
22. Learned counsel for the petitioner further urged that the appeal was made by the returned candidate himself and through his agents in the election to vote for the returned candidate to influence the Muslim community on the ground of race and caste. Fatwa was distributed, therefore, it is a corrupt practice within the meaning of Sec. 123(3) of the Act.
23. Learned counsel for the petitioner has contended that the returned candidate was guilty for the furtherance of the prospects of the election and for prejudicially affecting the election in his favour.
24. Sub-section (3) of Section 123 of the Act reads as under:--
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
25. The learned counsel for the petitioner has pressed the ground mentioned in the election petition pertaining to Section 123(3) of the Act. Other grounds have not been pressed into service by the learned counsel for the petitioner.
26. Learned counsel for the election petitioner has argued that these facts of corrupt practice have been proved by oral evidence of the petitioner himself and his witnesses particularly P.W. 2 Govind Mohan and P.W. 3, Vinod Kumar Suman, therefore, the election petition deserves to be allowed on this ground.
27. In the last, the learned counsel for the petitioner has contended that even after the expiry of the period of assembly election in question, if any corrupt practice within the meaning of Section 123 of the Act is proved against the returned candidate or any other candidate sponsored by him it would entail upon him the disqualification for standing as a candidate or even for voting for a period of 6 years under Sections 140 and 141(b) of the Act. Learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of
28. In reply, Mr. V.K. Kohli, learned Senior Advocate, with Mr. H.M. Bhatia, Advocate, appearing for the respondent-returned candidate has contended that two grounds have been pressed in the present election petition by the petitioner, namely ground Nos. 6-A and 6-C. The petitioner Mr. Shamim Alam has deposed in his statement as P.W. 1 that the photograph of the hoarding/banner is paper No. A-3/19 on record. This photo was handed over to the petitioner by Govind Mohan (PW 2), who told him that he brought this photograph from the Bhartiya Janta Party office. The contention of the learned counsel for the returned candidate-respondent is that the evidence adduced by the election petitioner pertaining to the appeal is a hearsay. The petitioner himself as P.W. 1 has stated in his cross-examination that he does not know as to who installed hoarding (flex) above the Sethi Cloth House in Laxman Chowk Constituency. When the P.W. 1 was put to cross-examination on 28-7-2009, the witness has stated that he does not remember who had affixed the said banner above Sethi Cloth House and on which date. When this hoarding was fixed, no complaint was made by the petitioner himself to the authority concerned before filing the election petition.
29. Learned Senior Advocate appearing for the respondent further contended that the photograph handed over by Mr. Govind Mohan (PW 2) to the petitioner is on record, but Govind Mohan alone can tell about the negative of the photograph, who had taken the photograph. P.W. 1 further stated in his cross-examination that he cannot say as to who had given the information to the publisher of Dainik Jagran of the article published on 7-2-2007. He has come to know after reading the newspaper. So far as inquiry made by the City Magistrate in the matter is concerned, this witness showed his ignorance.
30. Learned Senior Advocate appearing for the respondent, with reference to the statement made on 28-7-2009 in paragraph 8 of the cross-examination, drew attention of this Court that the election petitioner himself has admitted that no talks had taken place in his presence between the returned candidate and Mufti Mohd. Salman and he does not remember the name of the person who told the petitioner that the Fatwa in question was issued by Dinesh Aggarwal. He deposed that he had not reported the matter to election officer/administration/police. He further deposed that Hafiz Mohd. Aslam Kadri, who was Imam of Lohia Nagar Masjid told him that the Fatwa was got affixed at the door of the Masjid by Dinesh Aggarwal.
31. In the cross-examination made on 10-8-2009, PW 1 in paragraph No. 3 he showed his ignorance whether in the election petition any averment was made regarding affixation of Fatwa and reading of Fatwa on the behest of Dinesh Aggarwal or not. P.W. 1 has also admitted that so far as he recollects, the name of Sri Dinesh Aggarwal was not there amongst those who read out the Fatwa. He specifically stated in the Fatwa there was an appeal to Muslim community to vote for Congress. He does not remember the names of the persons who distributed Fatwa and in paragraph 11, it has been denied that Fatwa was distributed in Hindi and English. In paragraph 12, this witness has deposed that Photostat of Fatwa was being distributed and the photocopy has been placed on the record of election petition. He had not seen the original copy of the Fatwa.
32. Learned Senior Advocate has further contended that the material witness, who developed the photograph of the alleged hoarding (flex) has not come forward in the witness box on behalf of the petitioner, therefore, a presumption u/s 114 of the Evidence Act be drawn against the petitioner. Mr. Govind Mohan P.W. 2 in his testimony has deposed that he does not know the name of the person who developed the photograph and he has no knowledge of the shop from where the photograph was developed.
33. Learned Senior Advocate has also stressed upon the statement made by Sri Govind Mohan P.W. 2 and contended that the alleged videography was made by his mobile phone, but no such video was produced before this Court and no effort was made to file the sim card of the mobile whereby video recording was made and photograph was taken, as is the case of the petitioner.
34. With reference to the statement of P.W. 3 Vinod Kumar Suman, when he was put to cross-examination on 16-11-2009, this witness has deposed in the cross-examination that there was a difference in the tricolour flag used for appeal in the election from that of the colour of national flag but stated that the wheel containing 24 spokes were similar to that of the national flag. In paragraph Nos. 11 and 12 of the cross-examination, P.W. 2 has stated that he had not seen the banner and he never seen anybody affixing the hoarding and that the F.I.R. was lodged on the basis of the news published in the newspaper on 7-2-2007. He further deposed that he never visited the site and showed his ignorance about the reporting made to the newspaper. He did not prepare any inquiry report.
35. So far as the statement of PW 5 Hafiz Mohd. Aslam Kadri is concerned, he has stated in his examination-in-chief that Mr. Dinesh Aggarwal candidate of Laxman Chowk constituency had brought some pamphlets, wherein there was an appeal not to vote for Bhartiya Janta Party. In the cross-examination, this witness had deposed that he did not know whether in the pamphlets there was any averment not to vote for B.J.P.
36. In support of his case, the returned candidate Mr. Dinesh Aggarwal has examined himself as D.W. 1 and has also one Gurmeet Singh Bagga as D.W. 2. D.W. 2 has stated he did not install any hoarding containing national flag in Patelnagar, Dehradun or got it affixed by anybody else. He further deposed that he knows Govind Mohan (PW 2) and he contested the election of ward member of Ward-43, Patelnagar as congress candidate against Govind Mohan, who is his political rival and the relations between them are not cordial. Therefore, P.W. 2 has named him for getting the hoarding affixed. No such responsibility was given to him by the party to install the hoarding in Patel Nagar area.
37. Learned Senior Advocate has made reference to the provisions of Section 100 of the Act, which deals with grounds for declaring election to be void. He submitted that sub-section (1)(b) of Section 100 provides that if the High Court is of the opinion any corrupt practice is committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent the High Court shall declare the election of the returned candidate to be void.
38. What shall be deemed to be corrupt practices is defined u/s 123 of the Act. Sub-section (3) of Section 123 provides as under:--
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election that candidate or for prejudicially affecting the election of any candidate.
39. Sub-section (3A) of Section 123 of the Act reads as under:--
(3A). The promotion of, or attempt, to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospect of the election of that candidate or for prejudicially affecting the election of any candidate.
40. Learned counsel for the respondent has contended that the election petitioner has also not proved these grounds by a cogent and reliable evidence and in fact it is a case of no evidence.
41. The provisions of Sections 61, 62 and 65 of the Evidence are relevant on the point of primary evidence, secondary evidence and how the secondary evidence shall be proved. In the case at hand, the proof of photograph placed on record has to be scrutinized and examined. The provisions of Section 61 speaks about primary evidence, provisions of Section 62 pertain to secondary evidence and Section 65 of the Evidence Act provides how the secondary evidence has to be led.
42. Learned Senior Advocate appearing for the returned candidate-respondent has argued that in the case at hand, the election petitioner has not filed negative of the photograph in question and has also failed to examine the person in the witness box who developed the photograph into a negative. As such the story of photograph put forth by the petitioner falls to the ground for want of proof thereof. Learned counsel for the respondent has placed reliance upon a Division Bench judgment of Bombay High Court in the case of
43. Learned counsel for the respondent has further submitted that the election petitioner has failed to prove the corrupt practice by tendering admissible evidence. The allegations made against the returned candidate are only hearsay evidence and cannot be considered. Learned Senior Advocate has placed reliance upon the case of
44. Learned senior advocate appearing on behalf of the respondent-returned candidate has submitted that the grounds of corrupt practices requires proof in the manner not less than a criminal proceeding. Reliance has been placed in the case of
82. An election petition challenging the election of a returned candidate on the grounds of corrupt practices is not a criminal proceeding; but it is no less than a criminal proceeding with regard to the proof required to be furnished to the court by the petitioner (see
45. Lastly it was contended that so far as the argument, which was made by the learned counsel for the election petitioner that the respondent is guilty of Flag Code of India, 2002, they are merely administrative guidelines and it is not an Act in view of the Division Bench judgment rendered by the Bombay High Court in the case of
46. In reply to the arguments advanced on behalf of the respondent, learned counsel for the election petitioner has reiterated the arguments already advanced in the case.
47. I have heard learned counsel for the parties and perused the entire evidence both oral and documentary adduced by the parties.
48. P.W. 1, Shamim Alam, in his testimony has stated that the photograph paper No. A-3/19 was taken by Govind Mohan (P.W. 2) and that he has read about the banner/hoarding in the newspaper "Dainik Jagran", dated 7-2-2007. He has also stated that Mufti Mohd. Salman had issued a Fatwa to vote in favour of Dinesh Aggarwal. The photocopy of which is paper No. A-3/29 on record. He further deposed that Fatwa was distributed in all the Masjids of 13-Laxman Chowk constituency. He lodged a complaint with Election Officer, which is paper No. A-3/27. He also stated that one another appeal was got published by Dinesh Aggarwal at Shakshya Press Dehradun, which is paper No. A-3/33. One other appeal was published by the corporators of Congress Party, photocopy of which is paper No. A-3/34. P.W. 1 has been cross-examined. In his cross-examination, he has admitted that he had not seen anybody installing banner above Sethi Cloth House. He also admitted that he did not make any complaint by himself about the banner/hoarding. The testimony of P.W. 1 is not conclusive proof of either of the grounds of corrupt practice and has to be scrutinized from the evidence of other witnesses adduced on behalf of the election petitioner.
49. So far as the placing of hoarding along with national flag with Ashok Chakra having 24 spokes above the Sethi Cloth House is concerned, it is the admitted case of the election petitioner that he had not seen anybody including the returned candidate or his agent with the consent of the returned candidate placing the hoarding.
50. P.W. 2, Govind Mohan, who is said to have taken photograph of the hoarding from his Mobile on 5-2-2007 has however stated that he saw the returned candidate Dinesh Agarwal along with his active associate Sri Gurmeet Sing Bagga and other workers at the time of affixing the hoarding. It is also admitted case of the parties that the person who had developed the photograph in the laboratory has not been produced in evidence. The negative of the photograph has also not been filed on record nor the negative has been proved. P.W. 3, Vinod Kumar Suman, who was Returning Officer at the relevant time has stated in his examination-in-chief that there was some difference in the colour of tricolour flag. He has admitted in his cross-examination that he had not seen the banner at the spot. He did not collect any information by visiting the spot. He showed his ignorance as to who had done repotting about the banner in the newspaper. He did not contact the publisher of the newspaper on this issue. P.W. 4, Kishan Singh Negi was posted as Tehsildar Sadar, Dehradun on 7-2-2007. He had lodged FIR against the returned candidate on 8-2-2007. In his cross-examination, this witness has admitted that he had not taken possession of the banner in question and that he cannot say when the banner was removed from the spot. He did not prepare any inquiry report on spot. It is also admitted case of the election petitioner that he himself had not made any complaint to the authority concerned regarding affixation of banner above Sethi Cloth House.
51. It is thus evident that the material witness P.W. 2 Govind Mohan has neither filed negative of the photograph, taken by him nor could he tell as to who had given the information to the publisher of Dainik Jagran of the article published on 7-2-2007.
52. So far as the appeal by Fatwa is concerned, the election petitioner himself has admitted that no talks had taken place in his presence between the returned candidate and Mufti Mohd. Salman and that he does not remember the name of the person who told the election petitioner that Fatwa in question was issued by Dinesh Aggarwal. Moreover, the election petitioner (P.W. 1) had not seen the original copy of Fatwa.
53. P.W. 2 Govind Mohan in his cross-examination in paragraph No. 21 has admitted that Gurmeet Singh Bagga had contested election of ward member against him.
54. In the case at hand, the negative of the photograph has not been filed. The person concerned of the colour lab, who developed the photograph into a negative, had appeared in the witness box, therefore, in view of the Division Bench judgment of the Bombay High Court in the case of
55. So far as the appeal by Fatwa as alleged by the election petitioner is concerned, the original Fatwa has not been produced at the trial and that no witness came forward to prove the receipt of the manuscript of any of the messages or news item or publication of the same, therefore, in my view there was no satisfactory and reliable evidence on record to establish that any Fatwa was actually distributed or issued at the instance of the returned candidate. I am fortified in my view by the Apex Court verdict in the case of
56. From the side of the returned candidate-respondent, Gurmeet Singh Bagga has been examined as D.W. 2. This witness has deposed on oath that he had not affixed any hoarding showing national flag therein in Patelnagar, Dehradun and that he had not got the same affixed by anybody. He also deposed that he had not seen any hoarding of Mr. Dinesh Aggarwal along with national flag. In the cross-examination, no such suggestion was given to this witness from the side of the petitioner that he was present at the time when the hoarding in question was being affixed above Sethi Cloth House. While in the testimony of P.W. 2, Govind Mohan, the witness P.W. 2 has stated that hoarding was being affixed by Gurmeet Singh Bagga (D.W. 2). The person who developed negative from the photograph taken by P.W. 2 has not been examined nor any effort has been made to examine him in the witness box. It is pertinent to mention here that the photograph (paper No. A-3/19 on record) filed by the election petitioner has not been proved in accordance with law and, therefore, the testimony of P.W. 2 is of no help to the petitioner on the point of corrupt practice as alleged in the petition.
57. So far as the testimony of P.W. 3, Vinod Kumar Suman is concerned, this witness has stated on oath that there was difference in the colour of national flag as published in the newspaper. In his examination-in-chief, this witness has stated that the road in question was constructed by the State fund and not from Vidhayak Nidhi, as has been alleged in the election petition. The election petitioner could not establish that the returned candidate was in any way guilty of violation of code of conduct of election in the matter of construction of road.
58. From the side of the petitioner, Kishan Singh Negi, the then Tehsildar, Sadar, Dehradun has been examined as P.W. 4. He is only a formal witness and has deposed that on 8-2-2007, he lodged FIR against the returned candidate with the police station Kotwali, Sadar, Dehradun on the direction of Election Officer/City Magistrate. His testimony is of no help to the petitioner.
59. P.W. 5, Hafiz Mohd. Aslam Kadri has deposed that he was Imam of Masjid of Lohianagar and that Fatwa can be issued by Mufti and no candidate can issue Fatwa. He has also stated that the returned candidate had brought some pamphlets wherein there was an appeal not to vote for Bhartiya Janta Party. His evidence also does not help the election petitioner.
60. The returned candidate has examined himself as D.W. 1. In his statement on oath, the returned candidate has stated that neither he nor any other person with his consent had affixed any hoarding along with national flag. He also stated that Gurmeet Singh Bagga had not affixed any banner or hoarding. He has denied issuance of any Fatwa as alleged in the election petition. He has not issued any appeal for vote on the ground of religion. This witness has been cross-examined, but in his cross-examination, nothing material could be elicited to help the election petitioner.
61. From the above discussion of evidence on record as well as the arguments advanced by the learned counsel for the parties with reference to the law laid down by the Apex Court and the High Courts referred to above, I am of the considered view that the election petitioner has showed his ignorance as to who had installed the banner over Sethi Cloth House. The election petitioner has also not examined the person who had developed the photograph and the negative of the photograph 6r the sim-card of mobile was not filed on record and has not been proved in accordance with law. So far as distribution of Fatwa is concerned, the election petitioner has failed to produce the original Fatwa on record. I also find that the essential ingredient of corrupt practice as provided under subsection (3) of Section 123 of the Act, i.e. the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate, has not at all been established by any cogent, reliable, credential and trustworthy evidence.
62. Besides above, it is also pertinent to mention here that the election petitioner has not filed any primary evidence in the case at hand to establish corrupt practice against the returned candidate. Moreover, no effort has been made to establish the fact of corrupt practice by secondary evidence, therefore, no documents have been exhibited during the course of trial and they cannot be read in evidence. The evidence led by the election petitioner is quite shaky and after appraisal of the evidence brought on record, I am of the view that the election petitioner has utterly failed to establish either of the grounds of corrupt practice, i.e. Ground Nos. 6-A, 6-C, 6-D, 6-E, 6-F and 6-G, raised in the election petition against the returned candidate by any cogent and reliable evidence in accordance with law. No case of corrupt practice is made out against the returned candidate so as to declare the election of the returned candidate null and void. The election petitioner has miserably failed to prove either of the grounds of corrupt practice as mentioned in Ground Nos. 6-A, 6-C, 6-D, 6-E, 6-F and 6-G raised in the election petition. Both the issues are answered in the negative against the election petitioner.
63. Issue No. 3: In view of the findings recorded on Issue Nos. 1 and 2, the election petition deserves to be dismissed outright. The election petition is dismissed. No order as to costs.
