Judgment:
1. Present Election Petition has been filed under Section 80, 80A and 81 of the Representation of the PeopleAct, 1951 (hereinafter referred to as the žActŸ) to declare the election of the sole respondent from 28- Munger Parliamentary Constituency, held pursuant to notification dated 02.04.2009, for constituting 14th Lok Sabha void, on the ground that sole respondent committed corrupt practice in the said election within the meaning of sub-section (8) of Section 123 of the Act, his election is fit to be set aside under sub-section (1)(b) of Section 100 of the Act, as with his consent Superintendent of Police, Lakhisarai captured Booth Nos. 62 to 72 of Lakhisarai Vidhansabha Constituency, restraining the voters of those booths from casting their vote. Election-petitioner further prayed to direct the Election Commission of India to hold fresh election for 28- Munger Parliamentary Constituency.
2. Perusal of Election Petition and Annexure-1 indicates that election-petitioner contested 2009 General Election from 28-Munger Parliamentary Constituency as a Rastriya Janta Dal candidate along with sole respondent and 18 others and polled 1,84,956 votes. Sole respondent also contested the said election as Janta Dal (United) candidate and polled 3,74,317 votes and was declared elected. The other 18 candidates contested the impugned election either under the banner of different political outfit(s) or independent, secured votes less than the election-petitioner, which is evident from party-wise result annexed with the petition (Annexure-1).
3. Election-petitioner challenged the aforesaid election result on the ground that the respondent contested the impugned election as State President of the ruling party Janta Dal (United) and the entire District Administration including police administration wholly supported him providing the respondent opportunity to secure votes by illegal means breaking the law, Model Code of Conduct, guidelines and instructions issued by the Election Commission of India. It is further stated in the Election Petition that respondent planned to contest the impugned election much earlier and with his influence in the Government, got the entire set-up of the Constituency (district(s) constituting the Constituency) civil, police administration changed by securing posting of officers of his choice, caste in the entire Munger Parliamentary Constituency. It is further stated that right from the very beginning State Government officials made it a point to disturb and put hindrances in the election campaign of the petitioner. It is also stated that before the election police administration began to take coercive measures against the political workers of the petitioner harassing them by serving notice with false allegations. By way of sample, one such notice dated 24.04.2009, issued under the seal and signature of Officer-in-Charge, Mufassil Police Station, Munger to one of the workers of the petitioner Sri Banshidhar Damodar, resident of Village Shankarpur within Mufassil Police Station, Munger has been annexed with the petition as Annexure-2. Perusal of Annexure-2 indicates that the Officer-in-Charge, Mufassil Police Station has stated in the notice that he is receiving complaints against the noticee (Sri Banshidhar Damodar) that he is taking special interest in favour of a particular political party and thereby trying to pressurise the voters in his favour. Some of the complainants have telephonically informed the Officer-in-Charge that on the date of poll noticee along with his supporters is likely to disturb the poll. Aforesaid allegation is being enquired into and action will be taken as per the situation. The notice further warned the noticee that if any disturbance is caused on any of the booths within the Panchayat of the noticee, he may be made an accused in the First Information Report which would be lodged. The notice further stated that police action can also be taken against the noticee.
4. It has been further stated in the election-petition that election agent of the petitioner having come to learn about issue of notice dated 24.04.2009 and similar other notice by S.H.O., Mufassil Police Station, Munger and other police officers informed the Chief Election Commissioner, New Delhi under representation dated 29.04.2009 (Annexure-3) that political workers of the petitioner are being harassed by serving them notice but according to the petitioner the Chief Election Commissioner did not take any action in response to representation dated 29.04.2009 (Annexure-3). Petitioner further stated in the election-petition that in the morning of 25.04.2009 one Micro Observer came to his house and entered his bed-room and began to take photographs. After he was restrained from taking photographs he went away. Later petitioner went out for his election campaign then the said Micro Observer again came to his house and entered his bed-room and began to question his wife, children as also took photographs. When the wife, children of the petitioner restrained him from taking photograph, the Micro Observer informed the wife, children of the petitioner that he has been asked by the District Magistrate, Munger to keep a close watch on the movement of the petitioner. With reference to the aforesaid incident petitioner has asserted in Paragraph 11 of the petition that his private life was invaded by the Government machinery to disturb the election campaign. Report about the aforesaid incident was also submitted to the Chief Election Commissioner, Election Commission of India by the election agent of the petitioner under representation dated 25.04.2009 (Annexure-4) but no action was taken on the report.
5. It is also stated in the Election Petition that nexalites had announced boycott of poll in some areas of Dharhara Block under Jamalpur Vidhansabha Constituency. Election agent of the petitioner having learnt about the aforesaid poll boycott announced by the nexalites requested the Returning Officer under representation dated 28.04.2009 (Annexure-5) to depute Para Military Force in those areas but no arrangement was made to depute Para Military Force in the areas in which nexalites had given a call for poll boycott of Dharhara Block under Jamalpur Vidhansabha Constituency. It is further stated in the Election Petition that in response to the poll boycott call the voters of the particular area of Dharhara Block of Jamalpur Vidhan Sabha Constituency did not turn up to cast their vote yet the counting figure of the said area indicates that more than 60 per cent votes were polled in favour of the respondent. It is submitted with reference to the aforesaid fact that the booths were captured by police personnel, administrative officers. Reference in this regard has been made to Booth Nos. 61, 96 and 97 of Suryagarha Vidhan Sabha Constituency.
6. It is further stated in the Election Petition that the C.R.P.F., B.S.F. and other paramilitary forces were not deployed by the concerned administration i.e. District Magistrate and Superintendent of Police keeping in mind the exigency arising at a particular booth and thereby maximum number of sensitive booths were without deployment of Para Military Force and were allowed to go for poll with symbolic deployment of Home-guard.
7. Information about the failure of the district administration to deploy Para Military Force on the sensitive booths was given by the election agent of the petitioner to the Election Commission of India and other concerned vide Fax Message dated 27,29.04.2009, copy whereof has been annexed as Annexure-6 series to the petition.
8. It is also stated in the Election Petition that petitioner and his election agent received information from general people of the Constituency, especially Lakhisarai, Mokama, Munger, Barh, Jamalpur and Suryagarha Vidhan Sabha Constituency that large number of criminals, strangers have come to the area and were seen roaming near the polling booths with full knowledge of respondent and with his consent to interfere in the poll for his benefit. Aforesaid information was also forwarded to the Election Commission of India under letter dated 27.04.2009, 29.04.2009, Annexure-7 to the petition, for ensuring free, fair poll.
9. In paragraph 16 of the Election Petition it has been asserted that on the date of poll i.e. 30.04.2009 as per the apprehension expressed in the representations referred to above, the petitioner, his election agent and supporters found large scale capturing of polling booths in the Constituency by the supporters, men of respondent who with the aid and active support of the Government officials deputed at the booth for election duty forcibly prevented the voters from polling their vote. They further noticed Superintendent of Police, Munger, Superintendent of Police, Lakhisarai, Polling Officials and the local administrative officers actively helping the men of the respondent in the act of booth capturing.
10. It is also asserted in the said paragraph that the officials of the choice of the sole respondent have only been deputed for election duty, who not only actively captured the polling booth but also were casting votes in favour of respondent. Asserting aforesaid fact number of complaints were sent to the Election Commission of India through Fax. One such representation has been annexed as Annexure-8.
11. In paragraph 17 of the Election Petition election-petitioner has asserted that Booth Nos. 62 to 72 of Lakhisarai Vidhan Sabha Constituency was captured by the Superintendent of Police, Lakhisarai himself and he prevented the genuine voters from casting their vote and got the votes cast in favour of the respondent. In the same paragraph it has been further averred that police personnel captured Booth No. 178 of Mokama Vidhan Sabha Constituency and prevented the actual voters from casting their vote. It is also averred in the same paragraph that Home-guards deputed at the polling Booth No. 128 of Suryagarha Vidhan Sabha Constituency not only prevented the voters from casting their vote but also polled their votes. It has also been stated in the same paragraph that the manner in which Polling Booth No. 128 of Suryagarha Vidhan Sabha Constituency was captured by the Home-guards deputed there has been videographed at the instance of the petitioner. Petitioner also sought indulgence of the High Court to produce the original cassette of the said film for being seen by the High Court.
12. It is further stated in paragraph 18 of the Election Petition that the polling agents of the petitioner were threatened and not allowed to sit in Booth No. 100 of Salona village and Booth Nos. 132, 133 of Nagar Palika, Lakhisarai Vidhan Sabha Constituency and Booth No. 170 of Suryagarha Vidhan Sabha Constituency.
13. In paragraph 19 of the Election Petition election-petitioner averred that the respondent during his election campaign publicly asked the voters of his caste to vote for him and not for others.
14. In paragraph 20 of the Election Petition election-petitioner further averred that respondent with the active help of the criminal elements of his caste and Government officials not only captured polling stations but voting was also done by E.V.M. without performing the required procedure i.e. obtaining signature of the voter on the relevant form and thereby prevented the genuine voters assembled at the polling station from casting their votes. The genuine voters were driven away from the booth by the criminal elements, men of respondent indulging in the act of booth capturing.
15. It is further stated in the Election Petition that election-petitioner though aware that his earlier representations were not acted upon by the Election Commission, yet submitted detailed representation dated 02.05.2009 in which he raised point-wise submission about bungling, manipulation done by men, supporters of respondent with the active and open help of Government officials. He further pointed out in the said representation that though re-polling was ordered on many booths but re-polling was not ordered on those booths for which election-petitioner requested the Election Commission of India.
16. It is further stated in the Election Petition that at the request of the election-petitioner an inquiry was made into the allegation of booth capturing by the men, supporters of respondent with the active assistance of the officials deputed to conduct the poll but the inquiry was also superfluous and conducted in haste, only with a view to support the conduct of the officials as they were posted prior to the election being announced only with a view to support the respondent.
17. Sole respondent filed petition dated 05.02.2010 raising preliminary objection praying for summary dismissal of the Election Petition under sub-section (1) of Section 86 of the Act. Election-petitioner filed rejoinder to the said petition.
18. Both the petition raising preliminary objection as also rejoinder to the said petition were heard and disposed of under Order No. 13 dated 23.09.2010 in terms whereof the petition raising preliminary objection was rejected directing the respondent to file his written statement within four weeks from 23.09.2010. Against the aforesaid order dated 23.09.2010 respondent preferred Petition for Special Leave to Appeal (Civil) No. 32024 of 2010 before the HonŸble Supreme Court. HonŸble Supreme Court under order dated 26.11.2010 passed in the said petition for Special Leave to Appeal issued notice to the election-petitioner and granted ad interim relief in terms of paragraph 8(a) of the S.L.P. The petition for Special Leave to Appeal remained pending until the same was dismissed under order dated 16.01.2013 in following terms :-
œThe special leave petition is accordingly dismissed. Interim order dated 26.11.2010 stands automatically vacated.
It is needless to say that the main petition shall be decided by the High Court without being influenced by the observations contained in the impugned order and dismissal of the special leave petition.?
19. After dismissal of the aforesaid petition for Special Leave to Appeal Election Petition was placed before this Court on 03.04.2013 when counsel for the respondent prayed for and granted one week time to file written statement with further direction to put up the petition on 10.04.2013 for settlement of issues.
20. Counsel for the sole respondent filed written statement on 09.04.2013 asserting that the Election Petition as framed is not maintainable and is fit to be dismissed for non-compliance of the mandatory provisions of Sections 81, 82 and 117 of the Act. It was also averred that Election Petition is fit to be dismissed under Section 86(i) of the Act as the copy of the Election Petition filed in this Court and served on the sole respondent is not the true copy of the Election Petition.
21. In paragraph 4 of the written statement it is asserted that Election Petition contains serious allegation of corrupt practice against the sole respondent but the election-petitioner has failed to make an adequate statement of material facts and full particulars of corrupt practice in his Election Petition. In this regard it is further asserted that omission of a single material fact from the pleadings will amount to not disclosing complete cause of action and the Election Petition is fit to be dismissed summarily under Order VII Rule 11 of the Code of Civil Procedure.
22. In paragraph 5 of the written statement it is asserted that the election-petitioner has raised serious allegation of commission of corrupt practice against the sole respondent but he has utterly failed to furnish any contemporaneous document to support his allegations and thus the allegation of commission of corrupt practice against the sole respondent has become imaginary, hypothetical and contrary to law. In the aforesaid circumstances, the Election Petition is not maintainable and is fit to be dismissed summarily and the trial of the present Election Petition will be an abuse of the process of law.
23. In paragraph 7, 8 of the written statement sole respondent has asserted that verification and affidavit supporting the allegations made in the Election Petition including the allegation of corrupt practice is not in accordance with order VI Rule 15 of the Code of Civil Procedure, Section 83 of the Act and Rule 94 of the Conduct of Election Rules, 1963 read with Form 25 of the said Rule. As such, the Election Petition and the allegations raised therein are not allegations in the eye of law and is fit to be dismissed summarily.
24. In paragraph 9 of the written statement sole respondent has refuted the prayer of the Election Petitioner asserting that the allegations of corrupt practice is purely the self statement of the election-petitioner, completely imaginary and hypothetical as the election of the sole respondent was free, fair and strictly in accordance with law. Any statement made calling in question the impugned election is bereft of truth and contrary to law. In such circumstances, the statement of the petitioner in Paragraph 1 of the Election Petition is only for providing the petitioner psychological satisfaction and also to harass the sole respondent unnecessarily as the sole respondent is not at fault at any stage of the election and the Election Petition is fit to be rejected.
25. In paragraph 10 of the written statement sole respondent asserted that the averments made in paragraphs 2 to 6 read with Annexure-1 of the Election Petition are matters of record and exclusive burden of proving the facts raised therein lies on the election-petitioner.
26. In paragraph 11 of the written statement sole respondent has asserted that the allegations contained in paragraph 7 of the election petition are vague. No details and particulars regarding the said allegation that the entire district administration including police administration was supporting the respondent by adopting illegal means, breaking the law, Model Code of Conduct, guideline and instruction of the Election Commission of India has been indicated in the said paragraph and the allegations made therein are fit to be deleted from the pleadings of the Election Petition.
27. It is further stated in paragraph 12 of the written statement that the allegations contained in paragraph 8 of the Election Petition are not only vague but also totally incorrect, false and far from truth. It is further stated in paragraph 12 of the written statement that it is incorrect to say that at the instance of the sole respondent entire set-up of the district Civil, police administration was changed before the declaration of the election and officers of a particular caste (of the caste, choice of respondent) were posted is incorrect. The petitioner has failed to furnish details of the allegations in the Election Petition. The name of the official, date and place where the official(s) were posted and the place where they disturbed, put hindrance in the campaign of the petitioner has not been given in the Election Petition.
28. In paragraphs 13, 14, 15, 16, 17, 19 and 20 of the written statement sole respondent has dealt with the assertions made in paragraphs 9, 10, 11, 12, 13, 15 and 16 of the Election Petition and Annexures 2, 3, 4, 5, 6 series, 7 and 8 series and has stated that the allegations set out in those paragraphs including statement of booth capturing of Booth Nos. 62 to 72 by Superintendent of Police, Lakhisarai in paragraph 16 of the petition is nothing but incorrect statements and bundle of falsehood and the documents contained in Annexures 2, 3, 4, 5, 6 series, 7 and 8 series have been drawn only by way of preparing grounds to challenge the impugned election and do not contain material facts as required under mandatory provision of Section 83 of the Act. The election-petitioner being confident of his defeat in the free and fair election was preparing grounds for his Election Petition. The allegations made in paragraph 12 of the Election Petition read with Annexure-5 do not contain material facts and no cause of action appears from vague pleadings. In fact, polling at the concerned booths were held peacefully and no petition whatsoever was filed before the concerned Presiding Officer. The allegations as made in paragraph 13 of the Election Petition read with Annexure-6 series is also bundle of concocted allegations as no petition was filed before the Presiding Officer of the concerned polling booth alleging overt acts and this omission on the part of the election-petitioner has made entire allegations false and concocted. The sole respondent in paragraph 19 of the written statement has out rightly denied the allegations made in paragraph 15 of the Election Petition read with Annexure-7 and stated that the said allegations are false and concocted only for the purpose of Election Petition. Besides no petition was filed before the concerned Presiding Officer with regard to the allegations as contained in paragraph 15 of the Election Petition read with Annexure-7.
29. In paragraph 20 of the written statement sole respondent has refuted the assertions made in paragraph 16 of the Election Petition regarding booth capturing of Booth Nos. 62 to 72 of Lakhisarai Vidhan Sabha Constituency by Superintendent of Police, Lakhisarai as false, afterthought and concocted. It has been further stated in the same paragraph that the election-petitioner being confident of his defeat in a free and fair election, filed different petitions contained in Annexure-8 series by way of preparing grounds for the present Election Petition. In this connection, it is further submitted in the same paragraph that petitioner and his election agent or other workers did not file any petition before the Presiding Officer of the booth-in-question. It is further stated that failure to file petition before the Presiding Officer of the concerned booth is indicative of the fact that there was no booth capturing as alleged by the election-petitioner and the polling was not only peaceful but also in accordance with law. In the same paragraph of the written statement it has been further stated by the sole respondent that material facts and full particulars constituting allegations of booth capturing at the aforesaid booths are also lacking in paragraph 16 for making out allegation of booth capturing. In the same paragraph the sole respondent not only denied the allegations made in the said paragraph but also the assertions made in the petition (Annexure-8 series).
30. In paragraph 18 of the written statement sole respondent has dealt with the assertions made in paragraph 14 of the Election Petition and has stated that the information contained in paragraph 14 of the Election Petition has been derived by the petitioner from a source which has not been disclosed in the said paragraph, as such, according to the sole respondent information contained in the said paragraph is false, afterthought and concocted.
31. In paragraph 21 of the written statement election-petitioner has dealt with the allegation made in paragraphs 17, 18 of the Election Petition and emphatically denied the allegations contained therein as untrue. It has further been stated in the same paragraph that allegations of booth capturing made in paragraphs 17, 18 do not contain material facts and full particulars.
32. In paragraph 22 of the written statement sole respondent has denied the assertions made in paragraph 19 of the Election Petition and has further submitted that petitioner has failed to furnish material facts as required by Section 83 of the Act. It is further stated that petitioner has not named any voter who was persuaded by either sole respondent or his men to vote for him in the name of his caste.
33. In paragraph 23 of the written statement sole respondent has denied the allegation made in paragraph 20 of the Election Petition as wholly false, afterthought and has further stated that Election Petitioner has not named even a single voter who was prevented by the respondent from casting his vote.
34. In paragraph 24 of the written statement sole respondent has dealt with assertions made in paragraph 21 of the Election Petition regarding casting of votes through E.V.M. without performing due procedure of obtaining signature on relevant form by the voters as totally false. He has further denied in the same paragraph that genuine voters were threatened and driven away by the criminal elements, men of the respondent and in the same paragraph he has also denied the allegations of booth capturing and has further stated that the allegations made in paragraph 21 of the Election Petition are too vague as even booth number of the booths which were captured has not been indicated in the said paragraph.
35. In paragraph 25 of the written statement sole respondent has dealt with paragraph 22 of the Election Petition and has asserted that the contents thereof are afterthought and has been raised only for the purpose of Election Petition. It is further stated that all the allegations contained in paragraph 22 of the Election Petition were considered by the Election Commission of India in accordance with law. It is further stated that in course of counting of votes no petition was filed regarding bungling in the counting process.
36. In paragraph 26 of the written statement sole respondent has dealt with paragraph 23 of the Election Petition and has asserted that the statement made in paragraph 23 of the Election Petition is not correct as in fact the Inquiry Team sent by Election Commission of India enquired the allegations thoroughly and found that there was no truth in the allegations of the petitioner. Thus any comment by the election-petitioner regarding enquiry done by the enquiry team is not correct and is motivated. It is further stated that it is false to say that sole respondent got agitation started against the said enquiry team at Munger by his supporters.
37. In paragraph 27 of the written statement sole respondent has dealt with paragraph 24 of the Election Petition and has asserted that the statements made in paragraph 24 of the Election Petition are motivated, false and for the purpose of Election Petition. In fact all his complaints/Fax message/letter of petitioner or submitted on his behalf were considered by the Election Commission of India. It is further stated in the written statement that the counting was done properly and the sole respondent was declared elected strictly in accordance with law.
38. In the light of the allegations made in the Election Petition and denial thereof in the written statement as noted above from the pleadings of the parties, this Court having considered them framed following issues under Order No. 19 dated 10.04.2013:
œ1. Whether the election petition itself is not fit to be rejected for non-compliance of Sections 81, 82 and 117 of the Representation of the People Act, 1951?
2. Whether the election of sole respondent from Munger Parliamentary Constituency is not void for conduct of corrupt practice within the meaning of Section 123 of the Representation of the People Act, 1951?? ]
39. In support of the allegations set out in the Election Petition election-petitioner examined as many as 11 witnesses, namely, P.W. 1 Bansidhar Damodar @ Damodar Yadav, P.W. 2 Surendra Prasad Yadav @ Surendra Yadav, P.W. 3 Sri Anant Kumar, P.W. 4 Mannu Mistri, P.W. 5 Surendra Prasad, P.W. 6 Munna Singh, P.W. 7 Ram Bhajan Rai, P.W. 8 Rajiv Ranjan Kumar Rai, P.W.9 Ganga Yadav, P.W. 10 election-petitioner Ram Badan Rai and P.W. 11 Binod Tiwari. Sole respondent has not examined any private witness. Only Returning Officer Lokesh Kumar Singh has been examined as R.W. 1.
40. Before proceeding to consider the submission made by the parties, it is necessary to appraise the evidence adduced by the parties.
41. P.W. 1 Bansidhar Damodar @ Damodar Yadav is resident of Village- Shankerpur, P.S. Mufassil, District- Munger and is a voter of Booth No. 157 Munger Assembly Constituency. He has claimed in his Examination-in-Chief that he is a worker of Rashtriya Janta Dal and had canvassed for the election-petitioner in the M.P. Election, 2009. In paragraphs 6,7 of his Examination-in-Chief P.W. 1 has stated that Chowkidar Jagdeo Ram served on him printed notice dated 24.04.2009 (Annexure-2), issued under the signature of Sri Bhubneshwar Thakur, Station House Officer, Mufassil P.S., Munger, over which his name and address was filled up by pen. In paragraphs 8, 9 of the Examination-in-Chief P.W. 1 furnished the name of the Station House Officer, Mufassil P.S., Munger as Sri Bhubneshwar Thakur, who was posted as Station House Officer Mufassil Police Station, Munger about 4-5 months prior to the election. In paragraph 10 of the Examination-in-Chief P.W. 1 stated that he was not known to Station House Officer, Bhubneshwar Thakur from before and came to know about him for the first time while he was canvassing in the election in favour of the election-petitioner in Sadar Block, Munger town and that Sri Bhubneshwar Thakur first threatened him and then asked him to confine himself in his house and not to do Netagiri and if he would continue to canvass against the sole respondent, he would be implicated in any case. He further stated in the same paragraph that as and when Sri Thakur saw him canvassing, he used to threaten him. P.W. 1 further stated in paragraph 11 of his Examination-in-Chief that similar notice was given by the police personnel to several R.J.D. workers including Pramod Yadav of Bank, Munger, Vijay Yadav of Milki Chak, Janki Nagar, Munger, Yugul Kishore Rai of Jafar Nagar, Munger and that he had seen those notices which was similar to the notice given to him and their name and address was also filled up in the notice by pen.
42. In paragraph 5 of the cross-examination P.W. 1 has admitted that in the voter-list his name has been mentioned as Damodar Yadav. In paragraph 6 of the cross-examination he further admitted that he has not filed any case against Sri Bhubneshwar Thakur, the then Station House Officer of Mufassil Police Station Munger after he threatened him not to ask for vote in favour of election-petitioner. In paragraph 7 of the cross-examination P.W.1 admitted that he was the Counting Agent of the election-petitioner but refuted in paragraph 8 that he acted as Polling Agent of the election-petitioner. In paragraph 12 of the cross-examination P.W. 1 further accepted that he has not filed any representation against the notice given to him by Chowkidar Jagdeo Ram under signature and seal of Officer-in-Charge Bhubneshwar Thakur. In paragraph 15 of the cross-examination he further refuted the suggestion that he has given false evidence on instruction of the election-petitioner.
43. P.W. 2 Surendra Prasad Yadav @ Surendra Yadav is resident of Village- Gulab Bag, P.S. Barh, District- Patna and voter from Booth No. 157 of Barh Assembly Constituency. He has also claimed in his Examination-in-Chief that he is political worker of Rashtriya Janta Dal and Vice-President of Patna District Unit of R.J.D. He has further stated in paragraph 7 of Examination-in-Chief that he was authorized by the election-petitioner to supervise the election work in the entire Barh Assembly Constituency and his appointment letter for supervising poll was issued by Assistant Returning Officer-cum-S.D.O., Barh, namely, Md. Yusuf. He has further stated in paragraph 8 that on the date of poll i.e. 30.04.2009 he was moving in the Constituency and was in contact with party workers, Booth Agent on telephone. In paragraph 9, 10 of the Examination-in-Chief he further stated that on the date of poll he went to Booth Nos. 193, 194, located in Middle School, Dhanwa at 11:00 A.M. after receiving information from Prakash Yadav, R.J.D. worker of village- Dhanwa and saw that the two booths have been captured by Gunda elements and supporters of sole respondent were casting bogus votes at his instance and the Home-guards, policemen deployed at the booth were also helping them. Voters standing in the queue were disturbed and chased away from the booth. In paragraph 11 of the Examination-in-Chief P.W. 2 further stated that supporters of sole respondent were openly shouting at Booth Nos. 193, 194 that Lalan Bhaiya had asked them not to allow any Paswan, Koeri to vote, to capture the booth and disturb the polling. In paragraph 12 of the Examination-in-Chief P.W. 2 has furnished the name of Bhutu Kumar, Ram Nand Prasad Singh, Prakash Yadav and Umesh Paswan as those who were standing in the queue and were chased away from the booth and not allowed to vote. In the same paragraph he further stated that polling agent of R.J.D. party deployed at the two booths were also chased away and not allowed to sit in the booth. In paragraph 13 of the Examination-in-Chief P.W. 2 further claimed that he immediately informed the Election Officer, his party candidate as also to the party office on mobile phone about the capturing of Booth Nos. 193, 194 of Dhanwa Village. In paragraph 14 P.W. 2 also stated that Assistant Superintendent of Police, Sujit Kumar also came to the booth following P.W. 2 and was informed about the booth capturing but Sujit Kumar instead of taking action against the miscreants laughed and told P.W. 2 that everyone has to live with the žRajŸand P.W. 2 had hot discussion with Sujit Kumar. In paragraph 16 of the Examination-in-Chief P.W. 2 stated that Booth Nos. 193, 194 comprised of Paswan voters and they were R.J.D. supporters.In paragraph 17 of the Examination-in-Chief P.W. 2 has furnished the number of voters assigned to the two booths and the vote cast on both the booths to suggest that voting on the two booths was one-sided. In paragraph 18 he has further stated that after coming to know that Booth Nos. 195, 196, 198, 199 and 179 have been captured he went to those booths also at 12:30 P.M. and saw supporters of the sole respondent having captured the booths and casting bogus votes in favour of sole respondent and genuine voters being chased away from the booth. Having seen booth capturing at Booth Nos. 195, 196, 198, 199 and 179 P.W. 2 reported the matter to the Overseer, R.J.D. candidate, Election Agent of the R.J.D. candidate present at the party office. In cross-examination P.W. 2 has admitted that contents of paragraphs 9, 11, 12 and 13 of his Examination-in-Chief has not been mentioned in the pleadings of the Election Petition. In paragraph 2 of the cross-examination P.W. 2 has stated that on the recommendation of the election-petitioner he was appointed by the Assistant Returning Officer-cum-S.D.O., Barh as Supervisor to supervise the conduct of election on behalf of the election-petitioner.
44. P.W. 3 Anant Kumar is resident of Village- Malpur, P.S. Ghoswari, District- Patna. He is also a voter from Malpur village Booth No. 198 of Mokama Assembly Constituency. He claims himself not only to be a worker of Rashtriya Janta Dal but also President of R.J.D., Ghoswari Block Unit. In Paragraph 7 of his Examination-in-Chief P.W. 3 has claimed that he was authorized by his party to supervise the election work in the entire Mokama Assembly Constituency. In Paragraph 8 of the Examination-in-Chief he further stated that election was held on 30.04.2009 and on the date of poll he supervised the election work on behalf of his party in the entire Mokama Assembly Constituency as all through during the poll he remained in contact with party workers and booth agents on telephone. In paragraph 9 P.W. 3 states that when he received information about the booth capturing at Booth Nos. 178, 179, 171, 172, 173, 174 and 164 he went to those booths between 10:00 A.M. to 2:00 P.M. The supporters of sole respondent captured the booths and were polling bogus votes in favour of the sole respondent at the instance of sole respondent. Voters standing in queue were chased. P.W. 3 in Paragraph 10, 16 of his Examination-in-Chief has stated that Booth Nos. 178, 179 are located in Middle School (East) and (West) of Village- Nauranga, Jalalpur and he saw both the booths being captured and the Home-guards deployed at the booth were casting votes in favour of the J.D. (U) candidate, the sole respondent. The genuine voters were chased away by the policemen deployed at the booth. He also heard booth capturers raising slogan œLalan Bhaiya Jindabad, Bhaiya Ka Kam Ho Gaya, Aab Inam Ki Bari Hai.? In paragraphs 12, 13, 14 and 15 P.W. 3 has stated that Booth Nos. 171, 172, 173, 174 and 164, located in Primary School, Hamja, High School north and south Rampur Dumra, Middle School, Sherpur and at Maranchi High School were captured by the miscreants and supporters of the sole respondent which is evident from the votes polled in favour of the sole respondent at those booths. In paragraph 17 of his Examination-in-Chief P.W. 3 asserted that the voters who were in queue on the aforesaid booths were chased away along with the booth agents of R.J.D. party and the agents were not allowed even to sit inside the booth. In paragraph 1 of the cross-examination P.W. 3 has stated that pleadings with regard to corrupt practice committed at Booth No. 178 of Munger Parliamentary Constituency (Munger Parliamentary wrongly typed for Mokama Assembly) is contained in paragraph 17 of the Election Petition. In Paragraph 2 of the cross-examination P.W. 3 has stated that he was not allowed to enter Booth No. 178 to file his application before the Presiding Officer of Booth No. 178 raising objection regarding booth capturing at the said booth. In Paragraph 3 of the cross-examination P.W. 3 has further stated that he wanted to submit his complaint with regard to booth-capturing of Booth No. 178 to the Returning Officer but he was not permitted to enter his chamber rather he was driven away from his office. In paragraph 4 of the cross-examination P.W. 3 has clarified that he has come to the High Court for giving evidence at the instance of the election-petitioner but in his evidence he has only stated whatever he saw on Booth No. 178 aforesaid.
45. P.W. 4 Mannu Mistri is resident of village- Bahapar within Nauranga Jalalpur Gram Panchayat, P.S. Maranchi, District- Patna, where he works as a cycle mechanic, furniture maker. He also claims to be a voter from Booth No. 178 of Mokama Assembly Constituency which according to P.W. 4 was located in the Veterinary Hospital, Bahapar. He further stated that election was held on 30.04.2009, Thursday, and he went to his booth between 9:00-9:30 A.M. and saw 10-15 villagers waiting in the queue at the booth. He also stood in the queue waiting for his turn to cast his vote. In paragraphs 8,9 and 10 of the Examination-in-Chief P.W. 4 further stated that after 10-15 minutes 8-10 leader, miscreant type persons came to the booth in a motor-car shouting slogan œLalan Singh Jindabad? entered the booth and resorted to assault on the voters who were waiting in the queue, having captured the booth chased away the voters. In the same paragraph P.W. 4 also stated that out of fear he also ran away and came outside the booth and kept standing outside the booth along with Surendra Prasad, a co-villager of P.W. 4 and saw that Neta type miscreants and Home-guards deployed at the booth polled bogus vote by operating Electronic Voting Machine. In Paragraph 12 P.W. 4 further stated that one Netaji of R.J.D. also came in a motor-car at about 10:00 A.M. and told P.W. 4 his name as Anand Kumar. In the same paragraph P.W. 4 has further stated that he protested the booth capturing by the supporters of Lalan Singh but police deployed at the booth did not allow him to go inside the booth. In paragraph 1 of his cross-examination P.W. 4 has denied the suggestion that he cannot become a witness in support of the election petition as his name is not included in the Election Petition as the one who was prevented from casting his vote at Booth No. 178 as incorrect. P.W. 4 has further stated in the same paragraph that he being a voter of Booth No. 178, his name even if not included in the Election Petition as the one who was prevented from voting at that booth, he having been summoned to appear as a witness in the case to state the fact of being prevented from voting, is entitled to make such statement.
46. P.W. 5 Surendra Prasad is resident of village- Bahapar P.S. Maranchi, District- Patna and also voter from Booth No. 178 of Mokama Assembly Constituency located in Veterinary Hospital, Village- Bahapar. Evidence of P.W. 5 is also on the similar lines as that of P.W. 4. P.W. 5 was waiting for his turn in the queue to cast his vote along with Mannu Mistri (P.W. 4). There were 10-15 voters in the queue. In paragraphs 9, 10 of the Examination-in-Chief P.W. 5 has stated that between 9:00-9:30 A.M. 8-10 persons came on a motor-car, 2-3 persons amongst those who arrived in motor-car were wearing white Khadi Kurta Pajama like Netaji, rest were wearing shirt-pant, they looked like miscreants, raised slogan œLalan Singh Jindabad?, chased away the voters standing in the queue after assaulting them. Having chased the voters the miscreants captured the booth whereafter 2-3 Netaji type men, Home-guard and policemen deployed at the booth polled bogus vote through E.V.M. Other policemen and Gunda type men kept the voters outside the booth by creating terror at the booth, no one could protest out of fear. The Home-guards and the supporters of sole respondent polled bogus vote in his favour by capturing the booth. In paragraph 14 P.W. 5 also admitted that one Netaji of R.J.D. had also come at the polling booth at 10:00 P.M. and disclosed his name as Anand Kumar. P.W. 5 further claims that he and others informed Anand Kumar about booth capturing and chasing away of the voters. According to P.W. 5 Anand Kumar tried to make protest but was not allowed by the police to come inside the booth. In paragraph 1 of the cross-examination P.W. 5 has admitted that in the Election Petition his name has not been included or disclosed as the one who was restrained from casting his vote. In Paragraph 2 of the cross-examination P.W. 5 has denied the suggestion that he cannot depose in support of the Election Petition.
47. P.W. 6 Munna Singh is resident of Village- Lal Diara, P.S. Piparia, District- Lakhisarai and voter from polling Booth No. 72, situate at Madhya Vidyalaya, Lal Diara of Lakhisarai Assembly Constituency. He has stated in his Examination-in-Chief that he came to his booth for casting his vote on 30.04.2009 at 8:00 A.M. and was waiting in the queue to cast his vote. In paragraph 9 of the Examination-in-Chief P.W. 6 has stated that the queue was not moving forward and he kept standing at the same place for about half an hour. When he tried to know as to why the queue is not moving ahead he saw 4-5 supporters of sole respondent inside the room where the E.V.M. was kept and they along with other supporters of sole respondent were casting votes and other supporters of the sole respondent were standing in the queue making no room for others to cast vote. In paragraph 10 P.W. 6 further stated that several heavy built miscreants, supporters of the sole respondent kept close watch on the voters asserting none will be allowed to cast his vote. In paragraph 11 P.W. -6 stated that polling agent of R.J.D. candidate was threatened and forced to leave the booth. In Paragraph 12 P.W. 6 stated that the policemen and the Home-guards were helping the supporters of J.D. (U). In paragraph 13 P.W. 6 further stated that polling booth was captured by J.D. (U) supporters and they were casting bogus vote in favour of J.D. (U) candidate. In paragraph 14 P.W. 6 further stated that at about 9:00 A.M. crowd of the villagers gathered at the booth. Members of weaker section who were mostly supporters of R.J.D. candidate were not being allowed to come in queue by the J.D. (U) supporters and were being asked to leave the booth, their vote will be polled, otherwise they may have to suffer ill consequences. Members of weaker section became afraid, did not come in the queue but remained standing near the booth. In paragraphs 15, 16 P.W. 6 has stated that between 9:00-9:15 A.M. he was standing in the queue to cast the vote. Superintendent of Police, Lakhisarai Shuklaji came at the polling booth with police force and asked the crowd of voters standing at the booth to disperse. The policemen chased the voters/villagers of weaker section. P.W. 6, however, was not chased. In paragraph 17 P.W. 6 has further stated that he saw Superintendent of Police, Lakhisarai entering the booth and talking to J.D. (U)supporters who were casting bogus vote in favour of sole respondent. In paragraphs 18, 19, 20, 21 and 24 of the Examination-in-Chief P.W. 6 again stated that Superintendent of Police, Lakhisarai ordered the policemen to chase the voters who were in queue and he himself came out and began chasing the voters in queue including one R.J.D. worker Rajiv Ranjan Kumar Rai and further asked the policemen not to allow any-one to enter the polling booth. The voters were chased far away from the polling booth. Superintendent of Police, Lakhisarai left the booth after about 15 minutes in his vehicle. In paragraph 22 P.W. 6 asserted that Superintendent of Police, Lakhisarai himself captured the booth and facilitated the J.D. (U) supporters to cast bogus vote in favour of sole respondent. In paragraph 23 P.W. 6 states that J.D. (U) supporters were raising slogan in favour of sole respondent. In paragraph 1 of the cross-examination P.W. 6 has admitted that the contents of his Examination-in-Chief has not been mentioned in the Election Petition including the fact that he was restrained from casting his vote during Parliamentary Election 2009 at Polling Booth No. 72. In paragraph 2 of the cross-examination P.W. 6 volunteered that he was waiting in the queue for his turn to cast vote at Booth No. 72 but Superintendent of Police Sri Shukla arrived in the Middle School, Lal Diara premises and went inside the booth and thereafter drove away all those who were standing either in the queue or in the field of the Middle School, Lal Diara for casting vote at Booth No. 72 situate in the Middle School campus. In paragraph 3 of the cross-examination P.W. 6 has denied the suggestion that he has given false evidence in Court.
48. P.W. 7 Ram Bhajan Rai is resident of Village- Malpur, P.S.- Piparia, District- Lakhisarai and voter from Booth No. 68 of Lakhisarai Assembly Constituency located in Middle School, Malpur. It has been stated by P.W. 7 in paragraph 7 of his Examination-in-Chief that he came to the booth between 8:00-9:00 A.M. for casting his vote, which stood captured by J.D.(U) supporters. In paragraphs 9, 10, 11 and 12 of the Examination-in-Chief P.W. 7 has further stated that Superintendent of Police, Lakhisarai came to the booth at 9:00 A.M., captured the booth by remaining present at the booth for about 15-20 minutes. In his presence 4-5 J.D.(U) supporters were polling bogus vote in favour of sole respondent and that Superintendent of Police, Lakhisarai chased away the voters standing in the queue at the booth and asked the policemen not to allow anyone to enter the booth. In paragraph 13 of the Examination-in-Chief P.W. 7 stated that one R.J.D. worker Rajiv Ranjan Kumar Rai had come to the booth at about 10:00 A.M. and tried to protest but was also chased away. In paragraph 14 P.W. 7 stated that the J.D.(U) supporters who captured the booth were proclaiming that nobody can open mouth and cast vote against the respondent. They were also raising slogan in favour of the sole respondent. In paragraph 1 of the cross-examination P.W. 7 stated that his name is not included in the Election Petition as the one who was restrained from casting his vote during 2009 Munger Parliamentary Election at Booth No. 68. In paragraph 2 of the cross-examination P.W. 7 further admitted that his name has not been mentioned in the Election Petition as a voter who was restrained from casting his vote but as it is true that he was restrained from casting his vote, he is always at liberty to appear as a witness. In paragraph 2 of the cross-examination P.W. 7 has denied the suggestion that he cannot appear as a witness to support the allegations set out in the Election Petition as his name is not included in the petition as the one who was restrained from casting his vote. In paragraph 4 of the cross-examination he has further denied the suggestion that he is a tutored witness.
49. P.W. 8 Rajiv Ranjan Kumar Rai is resident of village- Piparia Diara and voter from Polling Booth No. 73, located at Madhya Vidyalaya, Piparia Diara of Lakhisarai Assembly Constituency. In paragraph 7 of the Examination-in-Chief P.W. 8 has stated that during 2009 Parliamentary Election he was entrusted by the election-petitioner to work as a party organizer and election campaigner within the area of Piparia police station. He was also entrusted by the election-petitioner with the work to supervise the polling booths on the day of poll i.e. 30.04.2009. In paragraph 8 of the Examination-in-Chief P.W. 8 has stated that he came to cast his vote at his Polling Booth No. 73, Madhya Vidyalaya, Piparia Diara on 30.04.2009 at 7:30 A.M. when the polling was proceeding peacefully. In paragraph 9 of the Examination-in-Chief P.W. 8 has stated that he remained in continuous contact with his party worker on mobile phone and visited the polling booths of his area under Piparia Diara police station on his motorcycle. In paragraph 10 of the Examination-in-Chief P.W. 8 has stated that as and when he received information from party worker about booth capturing or polling of bogus vote, he immediately reached the said polling booth and watched the situation as also informed his party Election Office, party candidate i.e. election-petitioner, Dy.S.P., Lakhisarai, Election Observer etc. In paragraph 11 of the Examination-in-Chief P.W. 8 has stated that having received information from Booth No. 72 from his party worker Munna Singh that the booth has been captured by the J.D.(U) supporters and the policemen, he reached the said polling booth immediately around 9:00 A.M. and saw Booth No. 73 captured by J.D.(U) supporters, policemen. In paragraph 12 of his Examination-in-Chief P.W. 8 has further stated that in his presence Superintendent of Police, Lakhisarai came at the said polling booth with police force between 9:00-9:15 A.M. and went inside the booth and after five minutes ordered the policemen to chase away the voters from the booth and standing in queue. The police force chased all the voters in queue and the villagers standing near the polling booth. The said booth was captured by Superintendent of Police, Lakhisarai in favour of J.D. (U) candidate. In paragraph 13 of the Examination-in-Chief P.W. 8 has asserted that he tried to protest but was also chased away. In paragraph 14 of the Examination-in-Chief P.W. 8 stated that he received information about booth capturing, bogus vote being polled from his party worker from all the booths of Khutaha Dih East Gram Panchayat and Khutaha Dih West Gram Panchayat in favour of J.D.(U) candidate. In paragraph 15 P.W. 8 stated that he visited the polling Booth No. 68 Madhya Vidyalaya, Malpur on getting information about booth capturing by Superintendent of Police, Lakhisarai himself and J.D.(U) supporters. In the same paragraph he has further stated that one of the voter, Ravi Ranjan Rai told him that he and other voters waiting in queue to cast vote, were chased away by the policemen on the order of Superintendent of Police, Lakhisarai. In paragraph 16 of the Examination-in-Chief P.W. 8 further stated that he visited the polling booth at High School, Khutaha Dih West and found Superintendent of Police, Lakhisarai sitting there. The Superintendent of Police, Lakhisarai stayed at High School, Khutaha Dih for about 15 minutes and during his stay of 15 minutes, about 50 per cent bogus vote was cast in favour of J.D.(U) candidate, whereafter he left the polling booth. In paragraph 17 of the Examination-in-Chief P.W. 8 stated that Superintendent of Police, Lakhisarai himself actively participated in booth capturing of Booth Nos. 62 to 72 of Lakhisarai Assembly Constituency in favour of J.D.(U) candidate, the sole respondent. In paragraph 18 P.W. 8 stated that the polling agent of R.J.D. candidate almost at every booth was threatened and forced to leave the booth. In paragraph 19, 20 of the Examination-in-Chief P.W. 8 stated that the policemen and the Home-guards, deployed at Booth Nos. 62 to 72 were helping the supporters of J.D.(U) on almost all the polling booths of Khutaha Dih East and Khutaha Dih West Panchayat in capturing the booth and casting bogus vote in favour of sole respondent. In paragraph 1 of his cross-examination P.W. 8 has stated that he polled his vote at Booth No. 73, Middle School, Piparia, Diara within Lakhisarai Assembly Constituency. In paragraph 2 of his cross-examination P.W. 8 has stated that in the aforesaid election, 15-20 candidates may have contested but failed to recollect the name of the candidates. In paragraph 9, 10 and 11 of the cross-examination P.W. 8 has stated that when he went to cast his vote at 7:30 A.M., there were 10-15 voters in the queue. Just ahead of him in the queue was his father Sri Nikhedi Rai and following him was Vikas Rai who was his cousin brother. In paragraphs 12, 13 of his examination-in-Chief P.W. 8 has stated that he was not the Polling Agent of the election-petitioner at Booth No. 73 and he did not remember the name of the Polling Agent at Booth No. 73. In paragraph 18 of the cross-examination P.W. 8 has stated that he is not a functionary of the Rashtriya Janta Dal Party. In paragraph 20 of his cross-examination P.W. 8 has stated that on the date of polling he did not file any complaint before the Returning Officer alleging misconduct against Sri Shukla. Even after the date of polling, he did not file any complaint against Sri Shukla before the Returning Officer. In paragraph 21 of the cross-examination P.W. 8 further admitted that police force at the booth comprised of members of Bihar Police, Home-guard and C.R.P.F. He further stated in the same paragraph that with the Superintendent of Police also members of Bihar Police, Home-guard, C.R.P.F. as also other force in black dress was present. In paragraph 22 of the cross-examination P.W. 8 stated that he did not enter Booth No. 73 again after he cast his vote at the booth. In paragraph 26 of the cross-examination P.W. 8 has stated that he watched the proceedings at Booth No. 72 from a distance of 100-150 ft. In paragraph 27 of the cross-examination P.W. 8 stated that having cast his vote at Booth No. 73, he came back to his house, took lunch and after he received call on mobile, came back to Booth No. 72 and watched the proceedings of that booth from a distance of 100-150 ft. In paragraph 28 of the cross-examination P.W. 8 stated that distance between Booth No. 72 and 73 is about 3-4 K.M. In paragraph 31 of the cross-examination P.W. 8 further admitted that he did not file any application about the irregularities seen by him at Booth Nos. 72, 73 to the Returning Officer, either on the polling day or on the day following. In paragraph 32 of the cross-examination P.W. 8 further admitted that election-petitioner had not issued any written order asking him to watch the proceedings at Booth Nos. 72, 73. In paragraph 33 of the cross-examination P.W. 8 has denied the suggestion that the affidavit containing his Examination-in-Chief has been prepared on the instruction of the election-petitioner.
50. P.W. 9 Ganga Yadav is resident of village- Maheshpur, P.S.- Piri Bazar, District- Lakhisarai and is voter from Booth No. 104 of Suryagarha Assembly Constituency. He claims himself to be a political worker of Rastriya Janta Dal. In paragraph 7 of his Examination-in-Chief P.W. 9 has stated that he was authorized by the R.J.D. candidate to campaign for him in the entire Suryagarha and Jamalpur Assembly Constituency. In paragraph 8 of the Examination-in-Chief P.W. 9 has stated that election was held on 30.04.2009 and on that day he moved in the entire Jamalpur, Suryagarha Assembly Constituency and remained in contact with the party workers, polling agents on telephone. P.W. 9 has stated in Paragraphs 9 of his Examination-in-Chief that the naxals had given poll boycott call in Dharhara Block of Jamalpur Assembly Constituency and Chanan, Ghoghi and Bariarpur area of Suryagarha Assembly Constituency asking the voters not to cast their vote and if anyone will cast his vote, his hand would be severed. In paragraph 10 of the Examination-in-Chief P.W. 9 stated that no voter turned up to cast his vote at Booth Nos. 65 to 77 of Village- Bangalwa, Sakhaul etc. in Dharhara Block of Jamalpur Assembly Constituency. In paragraph 11 of the Examination-in-Chief P.W. 9 further stated that no voter turned up on several other booths of Dharhara Block, Chanan, Ghoghi, Bariyarpur area of Suryagarha Assembly Constituency but bogus votes were polled at those booths by the police personnel, Home-guards in favour of sole respondent. In paragraph 12 of the Examination-in-Chief P.W. 9 further stated that Booth No. 128, located at Salempur Panchayat Bhawan and Booth No. 170, located at Basuhar Primary School of Suryagarha Assembly Constituency was captured and bogus votes were polled by the Home-guards, policemen in favour of sole respondent. In paragraph 1 of the cross-examination P.W. 9 stated that his Examination-in-Chief on affidavit has been prepared by the counsel for the election-petitioner on his instructions and he having read the same found the statements correct and thereafter put his signature before the Oath Commissioner. In paragraph 2 of the cross-examination P.W. 9 stated that because of naxalite menace voters did not turn up for casting their vote at Booth Nos. 65 to 77 of Jamalpur Assembly Constituency of the impugned election. In paragraph 3 of his cross-examination P.W. 9 further stated that he did not enter the polling Booth Nos. 65 to 77 but moved around the premises of Booth Nos. 65 to 77. In paragraph 4 of the cross-examination P.W. 9 stated that he did not report to the Returning Officer, Chief Electoral Officer that the voters are not coming to cast their vote at Booth Nos. 65 to 77 but reported the fact to the Party Office, Munger. In paragraph 5 of the cross-examination P.W. 9 has stated that he is not aware about the names of the polling agent of the election-petitioner appointed for Booth Nos. 65 to 77. In paragraph 6 of the cross-examination P.W. 9 has further stated that he was verbally authorized by the election-petitioner to canvass for him in the Suryagarha, Jamalpur Assembly Constituency. In paragraph 7 of the cross-examination P.W. 9 stated that it is incorrect to suggest that he is not a R.J.D. worker and that he was not appointed to canvass for the election-petitioner and that he did not work for him during the campaign for the impugned election. In the same paragraph P.W. 9 admitted that the contents of his Examination-in-Chief has not been mentioned in the Election Petition. In paragraph 8 of the cross-examination P.W. 9 admitted that he did not furnish in writing to the authorities that vote is being polled by Home-guard Jawans, policemen at Booth No. 128 Salempur Panchayat Bhawan and 170 Baswar but gave such information by way of message to party office at Munger. In paragraph 9 of the cross-examination P.W. 9 further admitted that he did not submit any application regarding the irregularities mentioned above to the Election Officer or others supervising the impugned election.
51. P.W. 10 Ram Badan Rai is the election-petitioner and member of Extremely Backward Class, he contested the impugned election as Rastriya Janta Dal candidate. In paragraph 15 of the Examination-in-Chief P.W. 10 has stated that respondent adopted all measures of corrupt practice to win the impugned election, hence the Election Petition. In paragraphs 17, 18, 19 and 20 of the Examination-in-Chief P.W. 10 stated that the respondent misusing his position as President of the Ruling Party Janta Dal (U) got the entire set up of Police, Civil Administration of the Constituency changed from top to bottom in December 2008, January 2009 before notification for the 2009 Parliamentary Election was issued and Moral Code of Conduct came into effect. He also got the officer of his cast, choice posted as District Magistrate, Munger, namely, Sri Lokesh Kumar Singh, District Magistrate, Lakhisarai, namely, Sri Baidyanath Mishra, the Superintendent of Police, Munger, Superintendent of Police Lakhisarai Sri Shiveshwar Prasad Shukla. He also got other officers of Civil Administration, such as, Additional District Magistrate, Sub-Divisional Magistrate, Block Development Officer and Circle Officers of his choice/caste posted under the District Headquarter of Munger, Lakhisarai and Patna. He further secured transfer of the following officers of his caste in the Parliamentary Constituency:
Sri Amit Kumar, D.I.G., Munger
Sri S. Shukla, S.P., Lakhisarai
Sri Sujit Kumar, A.S.P., Barh
Sri Ashok Kumar, Dy.S.P., Munger Sadar
Sri Ram Anugrah Singh, Dy.S.P., Kharagpur
Sri Uma Kant Singh, Officer-in-Charge, Lakhisarai Police Station
Sri Ramkripal Sharma, Officer-in-Charge, Barhiya Police Station
Sri Manoj Singh, Officer-in-Charge, Suryagarha Police Station
Sri Bajrang Pandey, Officer-in-Charge, Chanan Police Station
Sri Kauslendra Akela, Officer-in-Charge, Piparia Police Station
Sri R.K. Singh, Officer-in-Charge, Ramgarh Police Station
Sri Gagan Kumar Thakur, Officer-in-Charge, Kawaiya P.S
Sri Sambhu Sharan Prasad Singh, Officer-in-Charge, Medni Chowki
Sri Manoj Kumar Singh, Officer-in-Charge, Halsi Police Station
Sri Subodh Tiwari, Officer-in-Charge, East Colony Police Station, Jamalpur
Sri Bhuneshwar Thakur, Officer-in-Charge, Mufassil Police Station, Munger
Sri Manoj Kumar Singh, Officer-in-Charge, Hemjapur Police Station
Sri D.N. Tiwari, Officer-in-Charge, Bariyarpur Police Station
Sri Gautam Kumar, Officer-in-Charge, Harijan Police Station, Munger
Sri Upendra Mishra, Officer-in-Charge, Barh Police Station
Sri L.K. Shukla, Officer-in-Charge, Mokama Police Station
Sri Sunil Kumar, Officer-in-Charge, Belchi Police Station
Sri Akela Sharma, Officer-in-Charge, Athmal Gola Police Station
Sri Shyam Kishore Ranjan, Officer-in-Charge, Maranchi Police Station
52. In paragraph 21 of the Examination-in-Chief P.W. 10 has asserted that at the instance of the sole respondent and under direction of the aforesaid officers, hundreds of his party workers conducting election campaign in favour of the election-petitioner were coerced and threatened not to indulge in political activity by the Police, Civil Administration. By way of illustration notice dated 24.04.2009 (Annexure-2) to the Election Petition has been placed on record to suggest that similar other notice was given to the party workers of the election-petitioner, namely, Banshidhar Damodar (P.W.1) and others. In paragraph 22 of his Examination-in-Chief election-petitioner has further asserted that after receiving the information about the factum of his party workers being coerced, his election agent Sri Sabir Hassan submitted complaint to the Chief Election Commission by fax message dated 29.04.2009 with copy to the Returning Officer and Election Observer (Annexure-3 to the Election Petition). In paragraphs 23, 24 of the Examination-in-Chief election-petitioner has asserted that on 24.04.2009 while he was in his bed-room in a hotel at Munger with his wife, children, a person along with photographer entered his room without permission and started taking photographs. The person coming into the bed-room introduced himself as Micro Observer but when he was asked not to take photographs, he went away. It is further stated that after the election-petitioner left for his election campaign, the said so-called Micro Observer again came inside the hotel room and began to question election-petitionerŸs wife, children as also took photographs. The intruder further told that he has been directed by the District Magistrate, Munger to do so. Complaint about the incident dated 24.04.2009 was made to the Chief Election Commissioner by the election agent of the election-petitioner vide Annexure-4 to the petition, copy whereof was also given to the Returning Officer, Election Observer. In paragraphs, 25, 26 and 27 of the Examination-in-Chief election-petitioner has stated that naxalites announced poll boycott in Dharhara Block of Jamalpur Constituency and Chanan, Ghoghi, Bariarpur area of Suryagarha Assembly Constituency, because of the poll boycott voters did not turn up to cast vote on polling Booth Nos. 65 to 77 of Bangalwa, Sakhaul and other villages of Dharhara Block of Jamalpur Assembly Constituency. No vote was cast on aforesaid polling Booth Nos. 65 to 77. According to the election-petitioner aforesaid area was his strong hold and he expected more than 70 per cent vote in his favour in that area but his supporters could not vote as Para Military Force was not deployed on those booths deliberately and thereby free, fair poll was not ensured. Request (Annexure-5) was made on 28.04.2009 to the Election Commission to depute paramilitary forces to facilitate the voters for voting but the District Administration did not deploy Para Military Force at the instance of the respondent and because of this deliberate and mala fide omission his supporters could not vote because of fear of Naxalite. In paragraph 28 of his Examination-in-Chief election-petitioner has further asserted that on several polling booths such as Booth Nos. 61, 96, 97 and other booths of Suryagarha Assembly Constituency and other polling booths of naxal affected area more than 70 per cent vote was cast in favour of the respondent at his instance by the Home-guards and policemen when no voter turned up for voting due to call given by the naxalites. In paragraph 29 of the Examination-in-Chief the election-petitioner has stated that the District Magistrate as well as the Superintendent of Police, Munger, Lakhisarai and Patna District(s) did not deploy Para Military Force on the sensitive booths deliberately and thereby misused their power at the instance of the respondent to extend benefit to him. In paragraphs 30, 31 of his Examination-in-Chief election-petitioner has asserted that his election agent filed representation dated 26, 27, 29-04-2009 (Annexure-6 series) to the Chief Election Commissioner informing the Chief Election Commissioner that his voters, supporters of Backward Class, Extremely Backward Class, Dalit of Piparia, Suryagarha, Lakhisarai, Barahiya, Barh and Mokama Blocks are being threatened not to vote by the criminals, musclemen of the respondent. Request was made to declare the polling booths sensitive and deploy Para Military Force for ensuring free, fair poll but that was not done. It has been further asserted that because of non-deployment of paramilitary forces on the polling booths of Piparia, Suryagarha, Lakhisarai, Barhaiya and Barh Blocks the booth of those blocks were captured by the criminals/anti-social elements at the instance of respondent with the active assistance of the Home-guards, policemen and bogus vote was cast in favour of respondent at his instance. In paragraphs 32, 33, 34 and 35 of the Examination-in-Chief election-petitioner has asserted that on the date of poll i.e. 30.04.2009 he and his election agent received information from political workers about booth capturing by policemen, Home-guard and musclemen of respondent at different places. Election-petitioner received information from his political workers Surendra Prasad Yadav and Prakash Yadav that Booth Nos. 193, 194 of Barh Assembly Constituency has been captured by the policemen, Home-guards at the instance of the respondent and bogus vote is being cast in favour of respondent. Anant Kumar informed the election-petitioner and his election agent that Booth Nos. 178, 179 of Mokama Assembly Constituency has been captured at the instance of respondent by the policemen, Home-guards and the musclemen of respondent and they were casting bogus vote in favour of the respondent. Election-petitioner also received information that voters of weaker section of Backward Class, Extremely Backward Class, Dalit and minority sections were beaten and chased away by the policemen, Home-guards and musclemen of respondent from several polling booth Nos. 195, 196, 198, 199 and 179 of Barh Assembly Constituency, Polling Booth Nos. 141, 142, 185 and 186 of Mokama Assembly Constituency including Booth Nos. 193, 194 of Barh Assembly Constituency and Booth Nos. 178, 179 of Mokama Assembly Constituency. In paragraph 36 of his Examination-in-Chief election-petitioner has asserted that after receiving the aforesaid information about booth capturing and casting of bogus vote in favour of sole respondent he immediately informed the Chief Election Commissioner, Returning Officer and the Observer on 30.04.2009, wrongly mentioned in the Examination-in-Chief as 30.09.2009, through fax (Annexure-8 series to the Election Petition) giving the booth numbers which were captured and bogus votes were cast in favour sole respondent. The information is contained in Annexure-8 series and the original of the same has been signed by the election-petitioner which has been marked as Exhibit. In paragraphs 37, 38 of his Examination-in-Chief election-petitioner has asserted that Superintendent of Police, Lakhisarai Sri Shiveshwar Prasad Shukla himself actively participated in booth capturing and casting of bogus vote in favour of respondent and at his instance. Booth Nos. 62 to 72 of Lakhisarai Assembly Constituency was captured by Superintendent of Police, Lakhisarai himself and party worker of election-petitioner Rajiv Ranjan Kumar Rai (P.W.8 ), is an eye-witness of the booth capturing by the Superintendent of Police, Lakhisarai, who reported about the same to the election-petitioner and his election agent. The act of booth capturing by the Superintendent of Police, Lakhisarai has also been witnessed by the eye-witness Munna Singh (P.W.6) at Booth No. 72, Madhya Vidyalaya, Lal Diara of Lakhisarai Assembly Constituency, Ram Bhajan Rai (P.W. 7) of Booth No. 68, Madhya Vidyalaya, Malpur, Rajiv Ranjan Kumar Rai (P.W. 8) witnessed booth capturing at Booth No. 72 by Superintendent of Police, Lakhisarai in favour of respondent. Having learnt about the booth capturing by the Superintendent of Police, Lakhisarai election-petitioner immediately submitted complaint to the Chief Election Commissioner, Returning Officer and the Observer on 30.04.2009 vide Annexure-8/6, 8/9 to the Election Petition. In paragraph 39 of the Examination-in-Chief election-petitioner further asserted that on 30.04.2009 the policemen, Home-guard deputed on the concerned polling booths and the musclemen of the respondent captured more than hundreds of polling booth of all the six Assembly Constituency of Lakhisarai, Munger, Suryagarha Jamalpur, Mokama and Barh. Thereby, voters of weaker section were beaten, chased away from the polling booth and not allowed to cast vote and bogus votes to the extent of 70-75 per cent was polled in favour of respondent. In paragraph 40 of his Examination-in-Chief election-petitioner asserted that he and his election agent filed several complaints on 30.04.2009 itself regarding incident of booth capturing and casting of bogus votes in favour of respondent on his instruction. He also stated that he had given details of the incident of booth capturing with booth numbers in different complaints all dated 30.04.2009 to the Chief Election Commissioner, Returning Officer, Observers by fax which has been annexed with the Election Petition as Annexures- 8/2, 8/3, 8/5, 8/7 and 8/8.
53. In paragraphs 1,2,3 and 4 of the cross-examination election-petitioner has accepted that he neither submitted any objection about the appointment of Returning Officer nor did he submit any application for removal of the Returning Officer of the impugned election, namely, District Magistrate, Munger to the Election Commission of India nor did he submit any application for removal of any other officer associated in conducting the impugned election. He also stated that he did not file any criminal case or submit any written report against the Officer-in-Charge, Mufassil Police Station, Munger or any other officer but his election agent did submit report against the Officer-in-Charge, Mufassil Police Station to the superior officers conducting the impugned election. In paragraph 5 of his cross-examination election-petitioner asserted that the statement made by him in paragraphs 3, 43 of his Examination-in-Chief are correct. In paragraph 7 of the cross-examination election-petitioner has clarified that he has not mentioned the name of his voter in the Election Petition who was restrained from casting his vote in the impugned election as his case is that voters in general were prevented from casting their votes in the impugned election. In paragraph 8 of his cross-examination election-petitioner has stated that he did not file any petition alleging misconduct against any particular Officer-in-Charge in conducting the impugned election or supervising the same but he kept requesting them to ensure free, fair polling. He did not expect from those incharge of conducting/supervising the impugned election that they would themselves indulge in committing corrupt practice by restraining the voters from casting the votes. In paragraph 9 of the cross-examination election-petitioner stated that he did not make any complaint against District Magistrate, Munger Sri Lokesh Kumar Singh, District Magistrate, Lakhisarai Sri Baidyanath Mishra, Superintendent of Police, Munger and Superintendent of Police, Lakhisarai Sri Shiveshwar Prasad Shukla. In paragraphs 10, 11 of the cross-examination election-petitioner stated that he did not apprehend before the date of poll any misuse of power by the officers named by him in paragraphs 19, 20 of his Examination-in-Chief. In paragraph 12 of the cross-examination election-petitioner stated that when he received complaint from his party workers regarding misuse of authority by the officers as they restrained his workers from campaigning on his behalf, he reported the matter to the Election Commission of India and officials concerned on 23, 24, 25-04-2009. In the same paragraph election-petitioner has further stated that hundreds and thousands of his party workers were restrained from campaigning on his behalf by the officer incharge of election/law and order, it was not possible for him to include the name of those party workers who were harassed and restrained. In paragraph 13 of the cross-examination P.W. 10 further stated that name of one of his political worker Banshidhar Damodar has been furnished in complaint after receipt of notice dated 24.04.2009 (Annexure-2 to the Election Petition). In paragraph 14 of the cross-examination P.W. 10 stated that he did not file any complaint case in the Court of Chief Judicial Magistrate concerned but reported the matter to the Election Commission of India, Returning Officer and Chief Electoral Officer, Bihar. In paragraph 15 of the cross-examination P.W. 10 has denied the suggestion that before filing the complaint dated 23, 24, 25-04-2009 he had become sure that he was going to be defeated in the impugned election and filed complaint(s) before the Election Commission of India, Chief Electoral Officer, Bihar, Returning Officer by way of preparing grounds for the Election Petition. In paragraphs 17, 18 and 19 of the cross-examination election-petitioner stated that after receipt of the notice from Officer-in-Charge of different police stations to his workers like the one dated 24.04.2009 (Annexure-2), his election agent Shabbir Hassan submitted complaint before Chief Election Commissioner, Election Commission of India, New Delhi dated 29.04.2009 (Annexure-3 to the Election Petition) but the name of the different police stations from which notices were issued to the political workers has not been furnished in Annexure-3. In paragraphs 20, 21 of the cross-examination election-petitioner admitted that he has not given the name of any particular naxalite who intended to disturb or disturbed the election nor has he given the name of the voter who was restrained from polling at Booth Nos. 65 to 77 of Bangalwa, Sakhaul and other village(s) of Dharhara Block of Jamalpur Assembly Constituency. He has made statement about the naxal organization. In paragraph 22 of the cross-examination election-petitioner having perused the petition dated 28.04.2009 (Annexure-5) submitted by Sri Shabbir Hassan election agent of the petitioner to the District Magistrate-cum-Returning Officer of the impugned election stated that in the said petition his election agent has neither given the name of any voter or booth number where the naxalites had issued instructions to boycott the poll but has only indicated in the petition Bangalwa Area of Dharhara Block of Jamalpur Assembly Constituency and request was made for deploying Para Military Force at the different booths of Bangalwa area for ensuring free, fair polling. In paragraph 24 of the cross-examination election-petitioner has stated that in support of the averment made in paragraph 30 of his Examination-in-Chief he has not indicated the name of any of his voter/supporter who was threatened by musclemen of the respondent. In paragraph 25 of the cross-examination P.W. 10 stated that in support of the averment made in paragraph 31 of his Examination-in-Chief he has not indicated the name of any of the criminal, anti-social element or the Home-guard, who captured the booth of Piparia, Suryagarha, Lakhisarai, Barahiya and Barh Block(s). In paragraph 26 of the cross-examination election-petitioner has stated that information about booth capturing on the date of poll i.e. 30.04.2009 was given to him by his voters/supporters but the name of his voters/supporters has not been mentioned in paragraph 32 of his Examination-in-Chief. In paragraph 27 of the cross-examination P.W. 10 has admitted in paragraph 33 of his Examination-in-Chief that he has made statement about booth capturing and casting of bogus vote at Booth Nos. 193, 194 of Barh Assembly Constituency but has not named the policemen, Home-guards or the workers of the respondent who indulged in booth capturing and casting of bogus vote on the two booths. In paragraphs 28, 29 and 30 of his cross-examination P.W. 10 has admitted that the Inquiry Team from the Election Commission of India had come to make inquiry in the Parliamentary Constituency after holding of the impugned election. The report submitted by the Inquiry Team was in favour of the respondent. Aforesaid report was submitted by the Inquiry Team sent by the Election Commission of India on the persuasion of the officials conducting the election in the State Guest House as while the team was proceeding to make inquiry, road from Mokama to Munger was blocked by the supporters of the respondent and the team was not allowed to proceed to make inquiry. The Inquiry Team was not allowed to visit any of the booths on which allegation was levelled by him. After submission of the report by the Inquiry Team election petitioner did not file any application before the Election Commission of India stating the aforesaid fact that the Inquiry Report was submitted without conducting any inquiry on the booths where the election was not conducted fairly. In paragraph 31 of the cross-examination election-petitioner further admitted that he has not given the name of any of his voters/supporters who were prevented from voting or scared away from the booth by the musclemen of the respondent from Suryagarha, Lakhisarai, Barahiya, Barh, Mokama Block(s). In paragraph 32 of the cross-examination election-petitioner has stated that he thought that his election agent has submitted representation with regard to the irregularities, illegalities committed at Booth Nos. 193, 194 of Barh Assembly Constituency to the Election Commission of India by the policemen, Home-guard at the instance of the respondent. In paragraph 34 of the cross-examination election-petitioner stated that on the date of poll besides his election agent he also submitted representation informing the Commission about the booth capturing made by the respondent and his musclemen as also Home-guards and policemen at Booth Nos. 178, 179 of Mokama Assembly Constituency. In paragraph 35 of his cross-examination election-petitioner admitted that in paragraph 35 of his Examination-in-Chief he has not indicated the name of any of his voter who was prevented from casting his vote at the polling booth numbers mentioned in that paragraph by the policemen/Home-guards and musclemen of respondent. In paragraph 36 of his cross-examination election-petitioner has stated that in paragraph 37 of his Examination-in-Chief he has not mentioned the name of any of his voter who was prevented from voting by Superintendent of Police, Lakhisarai when he captured booth Nos. 62 to 72 of Lakhisarai Assembly Constituency but two of his voters of those booths Ram Bhajan Rai (P.W.7) and Munna Singh (P.W.6) have been examined as a witness in these proceedings. In paragraph 37 of the cross-examination election-petitioner has stated that in paragraph 38 of his Examination-in-Chief he has mentioned the name of Munna Singh (P.W.6) voter at Booth No. 72 Madhya Vidyalaya, Lal Diara, Lakhisarai Assembly Constituency, Ram Bhajan Rai (P.W. 7), voter of Booth No. 68 Madhya Vidyalaya, Malpur, Lakhisarai Assembly Constituency, who were prevented from casting their vote as those booths were captured by Superintendent of Police, Lakhisarai himself in favour Respondent No. 1. In the same paragraph P.W. 10, however, admitted that he has not mentioned the name of any other voter. In paragraph 38 of the cross-examination election-petitioner has stated that Rajiv Ranjan Kumar Rai (P.W.8) is not the voter of Booth Nos. 62 to 72 but is a voter of the adjoining booth and had the occasion to visit Booth Nos. 62 to 72 and having seen these booths captured by Superintendent of Police, Lakhisarai gave information about booth capturing to the election-petitioner and that is why his name has been mentioned in Paragraphs 37, 38 of his Examination-in-Chief. In paragraph 39 of the cross-examination election-petitioner has admitted that any voter who is not the voter of a particular booth is not allowed to come inside the booth premises. He is, however, permitted to see the proceedings at the booth from outside. In paragraph 40 of the cross-examination election-petitioner stated that Rajiv Ranjan Kumar Rai (P.W.8) had seen the proceedings of Booth Nos. 62 to 72 from a place which was accessible for public. In paragraph 41 of the cross-examination P.W. 10 has stated that in paragraph 39 of his Examination-in-Chief he has stated about his voters being driven away from the polling booth of six Assembly Constituency of Lakhisarai, Munger, Suryagarha, Jamalpur, Mokama and Barh but has not given name of those voters who were driven out. The witness in the same paragraph volunteered that had he given name of the voters driven out, they would have been annihilated. In paragraph 42 of the cross-examination P.W. 10 further stated that in his Election Petition, Examination-in-Chief he has not indicated the reason for not giving the name of the voters driven out from the booth because they were likely to be annihilated if their name would have been disclosed. In paragraph 43 of the cross-examination election-petitioner denied the suggestion that pleadings in the Election Petition are not adequate with respect to the allegation of booth capturing. In paragraph 44 of the cross-examination he further denied the suggestion that he has given false and incorrect evidence.
54. P.W. 11, Binod Tiwari, is a resident of Road No. 15, Rajiv Nagar, Patna. He was the Office In-charge of the Principal Election Office of the election-petitioner at Munger and was assigned to perform and manage all official work of the Principal Election Office at Munger by the election-petitioner. In paragraph 3 of his Examination-in-Chief P.W. 11 stated that Sri Sabbir Hassan was duly appointed election agent of the election-petitioner. In paragraph 4 of his Examination-in-Chief P.W. 11 stated that his duty was to do all official work i.e. to prepare the draft of the letters on the instructions of the election-petitioner, election agent and after obtaining the signature of the person concerned to dispatch the letters, to receive message from the field workers and to pass the message received to the election-petitioner, his election agent as also to do the needful. In paragraph 8 of his Examination-in-Chief P.W. 11 stated that one of the workers of the election-petitioner Banshidhar Damodar was given notice by the police. On receiving such information at the instruction of the Election Agent P.W. 11 prepared a letter, got it typed and signed by the election agent and dispatched the same to the addressee through fax on 29.04.2009. In paragraph 9 of his Examination-in-Chief P.W. 11 has stated that the complainant against the Micro Observer was made on 25.04.2009 to the Election Commission of India under signature of Sri Shabbir Hassan. In paragraph 10 of his Examination-in-Chief P.W. 11 has further stated that on 28.04.2009 a request was made to the Returning Officer asking him to depute Para Military Force in Dharhara Block because of the threat and call for poll boycott given by the naxalites under the signature of Sri Shabbir Hassan, which was prepared and dispatched by him through fax. In paragraph 11 of the Examination-in-Chief P.W. 11 further stated that request dated 26, 27, 29-04-2009 was submitted to the Chief Election Commissioner regarding deployment of Para Military Force at different booths because of the threat of miscreants and anti-social elements at the instance of the sole respondent to the voters of the weaker section under signature of election agent Sri Shabbir Hassan which was prepared and dispatched by him through fax. In paragraph 12 of the Examination-in-Chief P.W. 11 has stated that on the day of poll i.e. 30.04.2009 he received information that on Booth No. 178 of Mokama Assembly Constituency police personnel themselves were casting vote for respondent at Booth Nos. 141, 142, 185 and 186 and they did not allow the voters of weaker section to vote and bogus vote was being cast in favour of respondent. Having received the information complaint was immediately sent to the Election Commission of India on 30.04.2009 with copy to Returning Officer and others under signature of Sri Shabbir Hassan which P.W. 11 had prepared and dispatched through fax on the instruction of Sri Shabbir Hassan. In paragraph 13 of the Examination-in-Chief P.W. 11 has stated that further information was received by the Election Agent that Booth Nos. 25 to 55 of Lakhisarai Assembly Constituency have been captured by anti-social elements in connivance with the administration at the instance of respondent. Information was also received by the Election Agent that voters of weaker sections were not allowed to vote at Booth Nos. 74, 124 of Lakhisarai Assembly Constituency at the instance of respondent. Further information was also received by the election agent that at Booth No. 128 of Suryagarha Assembly Constituency Home-guards are voting in favour of respondent and on Booth No. 170 polling agent of R.J.D. were not allowed to sit inside the Booth. Having received such information, complaint was immediately drafted on 30.04.2009 itself and sent to the Chief Election Commissioner with copy to Returning Officer under signature of Shabbir Hassan which was dispatched by P.W. 11 through fax. In paragraph 14 of the Examination-in-Chief P.W. 11 stated that on the day of poll i.e. 30.04.2009 information was received in the election office that Sri Shiveshwar Prasad Shukla, Superintendent of Police, Lakhisarai himself captured Booth Nos. 62 to 72 of Lakhisarai Assembly Constituency and bogus votes were polled in favour of sole respondent. After receiving such information in the election office at Munger, a complaint was prepared and dispatched by P.W. 11 at the instruction of the election-petitioner to the Chief Election Commissioner as also to the Returning Officer under signature of the election-petitioner. In paragraph 2 of the cross-examination P.W. 11 has admitted that he was appointed In-charge of the Principal election office of the election-petitioner but his appointment was not made by any written order. In paragraph 3 of the cross-examination P.W. 11 has admitted that the application alleging misconduct in the election process has not been submitted under his signature. In paragraph 4 of the cross-examination P.W. 11 has denied the suggestion that he has come to depose on behalf of the election petitioner as his election agent refused to depose in support of the election-petitioner. In paragraph 6 of the cross-examination P.W. 11 stated that he did not submit any application about booth capturing to the Presiding Officer of any booth. In paragraph 7 of the cross-examination P.W. 11 stated that on the date of poll he did not visit any booth nor met any Presiding Officer. In paragraph 8 of the cross-examination P.W. 11 stated that it is incorrect to suggest that his cross-examination is nothing but a bundle of falsehood. He also denied the suggestion in the same paragraph that he deposed falsely at the instance of the election-petitioner.
55. On behalf of the sole respondent one witness i.e. Lokesh Kumar Singh, the then District Magistrate, Munger, Returning Officer of 28-Munger Parliamentary Constituency of the impugned election has been examined as R.W. 1. In paragraph 2 of his Examination-in-Chief R.W.1 has asserted that the election was held on 30.04.2009 and during the said election police personnel were deployed on polling stations by the concerned District Election Officer and Superintendent of Police in consultation/concurrence with the Observers deputed by the Election Commission of India taking into consideration guidelines issued by the Election Commission of India. In paragraph 3 of the Examination-in-Chief R.W. 1 asserted that the poll was held peacefully in a free and fair manner except on five polling stations from where report of causing damage to EVMs was received and repoll conducted on those five polling stations in Lakhisarai Assembly Constituency of Munger Parliamentary Constituency with the permission of Election Commission of India. In paragraph 4 of the Examination-in-Chief R.W. 1 has asserted that three Observers were deputed by the Election Commission of India to oversee the conduct of election in Munger Parliamentary Constituency. In paragraph 5 of the Examination-in-Chief R.W. 1 has asserted that one day after the poll i.e. on 01.05.2009, in the light of instructions of Election Commission of India the VotersŸRegister maintained under 17 A was scrutinized in presence of Observers and candidates/their Election Agents. All the candidates were duly informed about this. All the Presiding OfficersŸdiary of all the polling stations were scrutinized in the presence of the Observers deputed by the Election Commission of Indiaand no adverse report was found except the five polling stations of Lakhisarai Assembly Constituency where EVMs were damaged by the miscreants. On the various complaints received from different candidates/sources, report(s) were sent to the office of Chief Electoral Officer Bihar. In paragraph 6 of the Examination-in-Chief R.W. 1 has asserted that Election Commission of India had deputed special team to enquire about the various complaints pertaining to Munger Parliamentary Constituency. The team visited Munger and met the candidates. The team also scrutinized various documents related to the election of the Munger Parliamentary Constituency. No adverse report was communicated from the Election Commission of India. Thereafter the counting was held on 16.05.2009 following the instructions of the Election Commission of India.
56. In paragraph 1, 2 of his cross-examination R.W.1 has stated that he was posted as District Magistrate, Munger in March, 2008. In the light of the complaint received from different candidates, sources he submitted report to the Chief Electoral Officer, Bihar in the format provided for submitting report. In paragraph 3 of his cross-examination R.W. 1 has asserted that the complaint dated 28.04.2009 submitted by Sabbir Hasan, Election Incharge of the election-petitioner, addressed to the District Magistrate-cum-Returning Officer of 28 Munger Parliamentary Constituency, is about five years old, as such, it is difficult for him to give specific answer about the steps taken by him pursuant to that complaint but in the naxal affected areas flag march, area domination activity was organized with the assistance of the Central Para Military Force, State Police Force on different dates prior to the date of poll. In paragraph 4 of the cross-examination R.W. 1 asserted that Central Para Military Force was deputed as per the guidelines of the Election Commission of India on such booths, which were found critical in the light of the exercise conducted following the guidelines of Election Commission of India. In paragraph 5 of the cross-examination R.W. 1 further asserted that to inform this Court about the fact whether Central Para Military Force was deputed in Bangalwa Area of 166 Jamalpur Assembly Constituency, he will have to see the deployment-plan of the Central Para Military Force drawn for conducting the impugned election. In paragraph 6, 7 of the cross-examination R.W. 1 asserted that it is incorrect to suggest that he has not conducted flag march in the naxal infested area by the Central Para Military Force. It is also incorrect to suggest that he did not depute Central Para Military Force at Booth No. 66 to 72 of 166 Jamalpur Assembly Constituency, where there was nil polling on Booth No. 66 to 72 and only one voter each came to poll vote on Booth No. 73, 74. In paragraph 8 of the cross-examination R.W. 1 asserted that complaint dated 30.04.2009 of the election- petitioner addressed to the Chief Election Commissioner, Election Commission of India being about five years old, as such, it is difficult for him to say about the order which he passed on that complaint but many similar complaints were received by him alleging misconduct on different booths and all such complaints were examined with reference to the VotersŸRegister, Presiding OfficerŸs Diary in presence of the Election Observer deputed by the Election Commission of India. In paragraphs 9, 10, 11 and 12 of the cross-examination R.W. 1 asserted that it is incorrect to suggest that his Examination-in-Chief submitted on affidavit is false and incorrect. It is also incorrect to suggest that having received the complaint about misconduct during poll he did not depute any officer to make inquiry. It is also incorrect to suggest that report sent by him to the office of C.E.O., Bihar was a table report. In fact all reports were sent after proper scrutiny and review of all the important documents, like Presiding OfficerŸs Diary, VotersŸRegister, Sector MagistrateŸs Report etc. It is also incorrect to suggest that report sent by him to the office of C.E.O., Bihar was not based on any spot inquiry because the Sector Magistrate, Presiding Officer and Zonal Magistrate, who submitted their report, were the officers available or present on the spot during the conduct of poll so their report is definitely a report based on the ground situation prevailing on the spot. In paragraph 13 of the cross-examination R.W. 1 asserted that the team deputed by the Election Commission of India had met the candidates or their election agents who had contested the election. Various complaints were received from either the candidates or their agents so, it is incorrect to suggest that the team deputed by the Election Commission of India did not meet any person who had actually complained. In paragraph 14 of the cross-examination R.W. 1 asserted that the team met the persons, the candidates or the agents who had sent the complaints and the team scrutinized all the relevant documents but the team only visited Munger, met all the candidates, reviewed and scrutinized all the documents. It is true that they did not go to various polling stations. In paragraph 15 of the cross-examination R.W. 1 asserted that as he has already stated that the matter is about five years old so he cannot certainly say about specific complaint but he can definitely say that on the day of poll various complaints were received on telephone on the Control Room number and through fax also. On the date of poll all these complaints were communicated to the Zonal Magistrate, Sector Magistrate who were on duty on the day of poll in those polling stations and report(s) were telephonically received from them and on the next day of poll Presiding OfficersŸdiary, VotersŸRegister, Sector MagistrateŸs report, all important documents were reviewed and scrutinized, particularly in case of those polling station where any sort of complaints were made and after proper scrutiny of documents appertaining to those polling stations where complaints were received no material fact was found which could establish any malpractice or irregularity at the polling stations. In paragraph 16 of the cross-examination R.W. 1 stated that in order to arrive at a conclusion that on all the polling stations where complaints of booth capturing was made, there was one-sided polling, he needs to see candidate-wise votes polled. In paragraphs 17, 18 and 19 of the cross-examination R.W. 1 has asserted that it is incorrect to suggest that statement made by him in his Examination-in-Chief is incorrect. It is also incorrect to suggest that he did not take any action on the complaints regarding booth capturing which were received on the day of poll. In fact, all the complaints which came to him, the Sector Magistrate, Zonal Magistrate were immediately communicated about the complaints and verification about the complaint was received from them. In the evening special counters were set up for those polling stations where there was any sort of complaint. These special counters were set up to receive the polled E.V.M., documents appertaining to those polling stations where any sort of complaint was received so that the documents pertaining to those polling stations could be scrutinized separately. He further asserted that it is also incorrect to suggest that his entire evidence is incorrect and false.
57. Learned counsel for the election-petitioner, with reference to Paragraph 8 of the Election Petition and the evidence of election-petitioner (P.W. 10) paragraphs 17, 18, 19 and 20 submitted that respondent being the State President of the ruling Janta Dal (United) party, utilized his political power and influence for securing change of the entire set-up of Civil, Police Administration of Munger Parliamentary Constituency from top to bottom and got posted the officers of his choice, caste in Police, Civil Administration of the Constituency before declaration of the impugned election in a planned manner and thereby secured the assistance and support of the officials in the impugned election.
58. Counsel for the election-petitioner next submitted with reference to Paragraph No. 9 of the Election Petition and the evidence of P.W.1, paragraph Nos. 6, 10, 11 and 12 and further evidence of P.W. 10, paragraphs 21, 22 of his Examination-in-Chief and paragraphs 10, 12 and 13 of his cross-examination that party workers of election-petitioner were harassed in various manner and information about the harassment was also given to the Chief Election Commissioner by the election agent of the petitioner under complaint dated 29.09.2009, as has been asserted in Paragraph 10 of the Election Petition, duly supported by Exhibit-X/8. Reference in this connection has also been made to the notice dated 24.04.2009 given by Station House Officer of Munger Mufassil Police Station to Sri Bansidhar Damodar (P.W. 1), a party worker of the election-petitioner.
59. Learned counsel for the election-petitioner further submitted with reference to paragraphs 12, 13 and 15 of the Election Petition and the evidence of P.W. 10 paragraph 25 to 31 of Examination-in-Chief and paragraphs 22, 23 of the cross-examination as also Exhibit-X/11 to Exhibit-X/18 that naxalites announced boycott of poll in some area of Dharhara Block of Jamalpur Vidhan Sabha Constituency. Election agent of the petitioner made request on 28.04.2009 to the Returning Officer to depute Para Military Force in those areas but force was not deputed. Election agent of the petitioner also sent request, information to the Election Commission of India on 27, 29.04.2009 requesting for deployment of Central Para Military Force in the area but the force was not deployed. Voters also did not turn-up for polling but polling result indicate that 60-75 per cent vote was polled in the naxalite affected area in Dharhara Block of Jamalpur Vidhan Sabha Constituency in favour of respondent, though there was zero polling on Booth No. 62 to 72 of Jamalpur Assembly Constituency and only one vote was polled on Booth Nos. 73, 74. In this connection learned counsel for the election-petitioner also pointed out that inspite of direction of this Court to produce the original deployment plan of Central Para Military Force deployed in naxalite affected area of Jamalpur Assembly Constituency, the plan was not produced, though its plain copy without signature was only produced. As such, the claim of the Returning Officer that he deputed Para Military Force in naxalite affected area of Dharhara Block in Jamalpur Vidhan Sabha Constituency does not appear to be correct.
60. Learned counsel for the election-petitioner with reference to paragraph 16 of the Election Petition and the contents of Exhibit-X to X/7, X/19, X/20 and the Examination-in-Chief of P.W. 10 in Paragraph 31 to 36 submitted that Civil, Police officials of the choice of respondent were deputed for election duty and with their active aid, support and assistance several polling booths were captured by the men and supporters of respondent and those who captured the booth also polled vote in favour of respondent. About booth capturing and bogus polling complaints were made to the Election Commission of India/Returning Officer on 30.04.2009 by the petitioner and his election agent.
61. Learned counsel for the election-petitioner also submitted with reference to the averments made in paragraph 17 of the Election Petition and the evidence of P.W. 6 to 8 and 10 ( P.W 6 paragraph 14 to 22 of Examination-in-Chief and paragraph 2 of cross-examination, P.W. 7 paragraph 9 to 12 of Examination-in-Chief (not cross-examined on the point), P.W 8 paragraphs 12, 15, 16 and 17 of the Examination-in-Chief (not cross-examined on the point) P.W. 10 paragraphs 37, 38 of Examination-in-Chief and paragraph 36 to 40 of cross-examination) that polling Booth Nos. 62 to 72 of Lakhisarai Assembly Constituency was captured by the Superintendent of Police, Lakhisarai, who prevented the genuine voters of those Booths from casting their vote and secured bogus vote for the respondent. In this connection reference is also made to the complaint filed before the Election Commission of India and the Returning Officer on 30.04.2009 (Exhibit-X/2 and X/3).
62. Learned counsel for the election-petitioner, with reference to paragraphs 16, 17 and 18 of the Election Petition and representation (Exhibit-X to X/7, Exhibit-X/19, X/20) and the evidence of P.Ws. 2, 3, 4, 5 and 10 submitted that Booth No. 178 of Mokama Assembly Constituency, Booth No. 128, 170 of Suryagarha Assembly Constituency, Booth Nos. 100, 132, 133 of Lakhisarai Assembly Constituency and several other polling Booths, mentioned in Exhibit-X to X/7, Exhibit-X/19, X/20 were captured by the policemen, Home-guard and criminals in support of respondent.
63. In the light of the pleadings made in paragraph 9 of the Election Petition and evidence of P.W. 1 learned counsel for the election-petitioner submitted that several Rastriya Janta Dal Party workers including P.W. 1, who were also electors in the impugned election, were threatened by the police not to campaign in favour of the petitioner. One such party worker, Bansidhar Damodar (P.W.1) has been examined in the instant case and with reference to his evidence the allegation set out in paragraph 9 of the Election Petition that the party workers and electors of the election-petitioner were being harassed and forced not to campaign for him, stands proved.
64. Learned counsel for the election-petitioner with reference to paragraph 8 of the Election Petition further submitted that the sole respondent being the State President of the ruling Janta Dal (United) party exercising his political influence got the entire set-up of Civil, Police Administration of the Parliamentary Constituency changed by officers of his own caste, choice, which is corroborated from paragraphs 18, 19 and 20 of the Examination-in-Chief of the election-petitioner (P.W. 10) and thereby succeeded in obtaining or procuring the assistance of those officers for the furtherance of the prospect of his election and committed corrupt practice within the meaning of sub-section (7) of Section 123 of the Act.
65. Learned counsel for the election-petitioner further submitted that the allegation of capturing of Booth Nos. 62 to 72 of Lakhisarai Vidhan Sabha Constituency by Superintendent of Police, Lakhisarai, as has been stated in paragraph 17 of the Election Petition and complaint dated 30.04.2009 (Exhibit-X/2 and X/3) sent to the Returning Officer, Election Commission of India about capturing of the aforesaid Booth by Superintendent of Police, Lakhisarai and there being no denial by Returning Officer (R.W. 1) that no such complaint was made or received by him, the allegation that Superintendent of Police, Lakhisarai captured Booth Nos. 62 to 72 of Lakhisarai Vidhan Sabha Constituency and thereby prevented the voters of those Booths from casting their vote stands proved in the light of the evidence of P.W. 6 to 8 and 10, as the counsel for respondent has not given specific suggestion to those witnesses that their assertion about capturing of Booth Nos. 62 to 72 of Lakhisarai Assembly Constituency by Superintendent of Police, Lakhisarai is incorrect. In this connection learned counsel for the election-petitioner further submitted that the counsel for the respondent has only given general suggestion to the aforesaid witnesses i.e. P.W. 6 to 8 and 10 that the evidence given by them in Court is not correct and in this background it is submitted that the allegation of Booth capturing by the Superintendent of Police, Lakhisarai, who is an other person within the meaning of sub-section (8) of Section 123 of the Act, for the benefit of respondent, stands proved and his election is fit to be set aside, even though, name of the elector, who was prevented from voting, because of Booth capturing by the Superintendent of Police, Lakhisarai, has not been furnished, as according to learned counsel for the election-petitioner, it is not necessary to furnish the name of the elector, who was prevented from voting because of Booth capturing by Superintendent of Police, Lakhisarai. In this connection learned counsel for the election-petitioner referred to Explanation 4 of sub-section (8) of Section 123 of the Act, which, inter alia, provides that Booth capturing shall have the same meaning, as is provided in Section 135-A of the Act.
66. In support of the allegation of Booth capturing, learned counsel for the election-petitioner also referred to the evidence of P.W. 6, voter of Booth No. 72, who deposed in paragraphs 8, 9 of his evidence that he was in queue but the queue was not moving forward and he saw that Booth was captured by musclemen of respondent. In paragraph 2 of his cross-examination P.W. 6 further stated that Superintendent of Police, Lakhisarai arrived at the Booth, drove away the voters in queue. He was also driven away while waiting in queue. He further referred to the evidence of P.W. 6 in paragraphs 15, 17 to 23 where he had specifically stated regarding Booth capturing by Superintendent of Police, Lakhisarai. Learned counsel for the election-petitioner also referred to the evidence of P.W. 7, Ram Bhajan Rai, a voter from Booth No. 68 (one of the Booth captured by Superintendent of Police, Lakhisarai) in paragraph 9 to 12 of his deposition where he gave details of Booth capturing by Superintendent of Police, Lakhisarai. Learned counsel for the election-petitioner also referred to paragraph 2 of the cross-examination of P.W. 7 where he categorically stated that he was restrained from casting vote. In this connection, learned counsel for the election-petitioner also pointed out that P.W. 7 was not cross-examined on the point of Booth capturing and his evidence is not rebutted on the said point. Learned counsel next referred to the evidence of P.W. 8, Rajiv Ranjan Kumar Rai, supporter and active party worker of the election-petitioner and submitted with reference to paragraphs 6, 7 of his Examination-in-Chief that P.W. 8 was entrusted with the task of organizing party workers. He further pointed out that P.W. 8, a party worker, received information about Booth capturing of Booth No. 72 from Munna Singh (P.W. 6) and having received such information reached Booth No. 72 and saw that Superintendent of Police, Lakhisarai had captured the Booth, as has been asserted by him in Paragraph 12 of his Examination-in-Chief. Learned counsel for the election-petitioner also submitted that P.W. 8 also went to Booth No. 68 after receiving information that the said Booth had been captured and saw Booth No. 68 captured by Superintendent of Police, Lakhisarai vide paragraph 15 of the Examination-in-Chief of P.W. 8. It is submitted that P.W. 8 was cross-examined extensively about his assertion that Booth No. 72 was captured by Superintendent of Police, Lakhisarai vide paragraphs 26, 27 and 28 of his cross-examination, but was not cross-examined on the point of his assertion that he also saw Booth No. 68 being captured by Superintendent of Police, Lakhisarai and the said evidence is unrebutted.
67. Learned counsel for the election-petitioner submitted that it is a fact that name of P.Ws. 6, 7 and 8 has not been mentioned in the Election Petition but in this connection referred to evidence of election-petitioner (P.W. 10) in paragraphs 36, 37, 38, 40, 41 and 42 and submitted that P.W. 10 clarified in paragraph 42 of his evidence that name of the voter driven away has not been given as they were likely to be annihilated if their name would have been disclosed in the Election Petition. Learned counsel further submitted that the present scenario of election activity in which history-sheeter rule the roost cannot be overlooked by the Courts of law as the general experience is that if the name of the witnesses is disclosed in the Election Petition, the witness and their family members are likely to be exposed to danger of life and limb. Learned counsel for the election-petitioner further submitted that Section 123, 135 of the Act has been brought on the Statute Book by Act 1 of 1989 with effect from 15.03.1989 and the decision of the HonŸble Supreme Court in the case of Samant N. Balakrishna, etc. Vs. George Fernandez and othersetc. AIR 1969 Supreme Court 1201, Azhar Hussain Vs. Rajiv Gandhi AIR 1986 Supreme Court 1253 and Chandrashekhar Singh Vs. Sarjoo Prasad Singh and another AIR 1961 Patna 189 referred to by the counsel for the respondents, have been delivered under different set of facts and the law, as such, will not apply to the facts of the present case.
68. Learned counsel for the election-petitioner with reference to Paragraph 17 of the Election Petition submitted that material facts have been pleaded in the Election Petition and full particulars thereof has been given in the deposition of P.Ws. 6 to 8 and 10 regarding capturing of Booth Nos. 62 to 72 of Lakhisarai Vidhan Sabha Assembly Constituency by Superintendent of Police, Lakhisarai on the day of poll.
69. Learned counsel for the election-petitioner with reference to the judgment of the HonŸble Supreme Court in the case of Samant N. Balakrishna, etc. Vs. George Fernandez and others etc. paragraph 30 (supra) submitted that a single corrupt practice, committed by the candidate, his election agent or by any other person, with the consent of the candidate, is fatal to the election and with reference to the ratio of the said judgment submitted that in the instant case petitioner having well proved the allegation of corrupt practice of booth capturing, the election of the respondent is fit to be declared void.
70. Learned counsel for the election-petitioner with reference to the judgment of the HonŸble Supreme Court in thecase of Harkirat Singh Vs. Amrinder Singh (2005)13 SCC 511 paragraph 48 to 52 submitted that in the said judgment Supreme Court has explained the term material facts and particular that the material facts are primary and basic facts which must be pleaded in support of the case set-up by the party and particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial. Learned counsel for the election-petitioner finally submitted that on the complaint made by the election-petitioner, team of Election Commission of India visited the office of the Returning Officer at Munger but they were not allowed to visit concerned place to enquire into the allegation, which is evident from the evidence of R.W. 1 also and submitted that for the irregularities committed during the poll, the election of respondent is fit to be set aside.
71. Learned counsel for the sole respondent has submitted that the present Election Petition is of unique nature and there is neither pleading nor evidence and, as such, the election-petitioner does not deserve any relief by this HonŸble Court. In this connection, he has pointed out that in the Election Petition there isvague allegation about commission of corrupt practice of Booth capturing and forcibly restraining the voters from casting their votes. It is also stated that it is significant to state that Section 100(1)(b) provides specifically that the High Court may declare the election of the Returned Candidate as void if any corrupt practice has been committed by a Returned candidate or his election agent or by any other person with the consent of the Returned candidate or his election agent. It is submitted with reference to the provisions of Section 83 of the Act that in the Election Petition there is no allegation in respect of Booth capturing, as nowhere it has been pleaded in the Election Petition that a particular voter was forcibly scared away and he did not cast his vote. It is further stated that the name of the voters, who were prevented from voting, has not been given and thereby it is submitted that Election Petition bereft of pleading regarding name of the voter who was prevented from voting because of Booth capturing by Superintendent of Police, Lakhisarai or the musclemen of respondent, is fit to be dismissed placing reliance on the Division Bench judgment of this Court in the case of Chandrashekhar Singh Vs. Sarjoo Prasad Singh and another (supra) paragraph 41 that the name of the voter, upon whom corrupt practice alleged to have been committed, must be given in the pleading of the Election Petition and in absence of the name of the voter prevented from voting, the charge of corrupt practice must fail on that ground alone. In this connection, it is also submitted that omission to plead material particulars is fatal to the Election Petition. Such aspect has been emphasized by the Supreme Court in the case of Samant N. Balakrishna, etc. Vs. George Fernandez and others etc. (supra) paragraph 29, Azhar Hussain Vs. Rajiv Gandhi (supra) paragraphs 9, 11 and that omission of a single material fact in the Election Petition is sufficient for dismissal of the Election Petition and placing reliance on the foresaid two judgments of the Supreme Court in the case of Samant N. Balakrishna, etc. Vs. George Fernandez and others etc.(supra), Azhar Hussain Vs. Rajiv Gandhi (supra) it is submitted that the present Election Petition is not an Election Petition in the eye of law and is required to be dismissed summarily.
72. Learned counsel for the respondent next submitted that evidence led in support of the Election Petition regarding booth capturing is not sufficient to prove booth capturing as there is no evidence indicating that any voter was threatened or restrained from casting vote. In other words, learned counsel for the respondent further explained that no voter in his evidence has stated that he was forcibly restrained from casting his vote so it can be safely said that there is no legal evidence on behalf of the election-petitioner regarding the allegation of corrupt practice. On the contrary, the Returning Officer stated in his evidence as an official witness on behalf of the sole respondent in paragraph 3 of his Examination-in-Chief that the poll was wholly peaceful conducted in free, fair manner except on five polling stations from where reports of damaging the EVM was received and, therefore, re-poll was conducted on those five polling stations in Lakhisarai Assembly Constituency of impugned election with the permission of Election Commission of India. In this connection, it was further pointed out that Returning Officer has further stated in paragraph 5 of his Examination-in-Chief that on the next day of poll i.e. 01.05.2009 scrutiny of 17-A VotersŸRegister of polling stations in the light of the instructions of Election Commission of India was done in presence of Observers and candidates and their election agent. All the candidates were duly informed about the scrutiny of VotersŸRegister. The Presiding OfficerŸs Diary of all the polling stations was scrutinized inpresence of the Observer deputed by the Election Commission of India and no adverse report was found except on the five polling stations of Lakhisarai Assembly Constituency where EVMs were damaged by the miscreants.
73. Learned counsel for the respondent further pointed out from the evidence of the Returning Officer that various complaints received from different candidates/sources were sent to the Chief Electoral Officer, Bihar, who, in turn, forwarded the same to the Election Commission of India and the Election Commission of India deputed special team to enquire about the various complaints pertaining to Munger Parliamentary Constituency. The team visited Munger and met with the candidates. The team also scrutinized various documents relating to the election of Munger Parliamentary Constituency. No adverse report was communicated from the Election Commission of India, whereafter counting was held on 16.05.2009 in the light of the instructions received from Election Commission of India. In the light of the aforesaid evidence of the Returning Officer counsel for the respondent submitted that the impugned election was conducted in accordance with law and the assertion of the election-petitioner that the Booths were captured was not found correct and the Election Petition is fit to be dismissed.
74. In view of the rival submission of the counsel for the parties, I proceed to consider the evidence of the witnesses in the light of the pleadings made in the Election Petition and the annexures appended thereto. It has been asserted in paragraph 8 of the Election Petition that the sole respondent, being the State President of the ruling Janta Dal (United) Party in the State, just before the election, using his political clout in the Government, got the entire Civil, Police Administration of the entire Munger Parliamentary Constituency replaced by the officers of his cast, choice. The newly posted officers harassed the political workers and supporters of the election-petitioner. By way of sample, notice dated 24.04.2009, under seal and signature of the Station House Officer, Mufassil Police Station, Munger, addressed to Bansidhar Damodar (P.W.1) has been placed on record and with reference to the said notice it is submitted that similar other notices were issued to more than hundred workers of the petitioner his party members with no criminal antecedent thereby the prospect of the political campaign of the election-petitioner, his chances of success in the impugned election suffered substantially. Perusal of the notice dated 24.04.2009 indicates that Station House Officer, Mufassil Police Station, Munger is continuously receiving complaints against the noticee (P.W.1) that he is taking special interest in the political activity of a particular political party and is trying to impress upon the voters in his favour by pressurising them. Some of the complainants have telephonically informed the Officer-in-Charge that on the polling day the noticee along with his supporters is likely to make serious effort to somehow disturb the poll. Correctness of the aforesaid information is being inquired into and action will be taken as per the situation. The notice further warned the noticee that if any disturbance is caused on any of the booths within the Panchayat of the noticee, he may be made an accused in the First Information Report, which would be lodged. The notice further stated that police action can also be taken against the noticee.
75. It is not in dispute that at the relevant time sole respondent was the State President of the ruling Janta Dal (United) party in the State. There has been a reshuffle of the officers posted in the Munger Parliamentary Constituency in December, 2008 and January, 2009 before the impugned election was notified. Before the reshuffle Sri Lokesh Kumar Singh (District Magistrate, Munger) was posted in March 2008, Sri Baidyanath Mishra (District Magistrate, Lakhisarai), Sri Shiveshwar Prasad Shukla (Superintendent of Police, Lakhisarai), Sri Amit Kumar (D.I.G., Munger) and others named in paragraphs 19, 20 of the Examination-in-Chief of P.W. 10 were perhaps posted in the Constituency before general election was notified and thereby the election-petitioner has drawn inference that the newly posted officers were of the choice, caste of the respondent and have been posted in the Constituency because of his political clout. There is, however, no evidence on record to suggest that the posting of the aforesaid officers in the Constituency before the notification of the impugned election was on account of the political clout exercised by the respondent. Inference drawn by the election-petitioner is on the basis of the perception that respondent, being the State President of the ruling Janta Dal (United) party, must have exercised his political clout in the Government to secure the posting of the officers named in paragraphs 18, 19 and 20 of the Examination-in-Chief of the election-petitioner. Inference drawn by the election-petitioner is nothing but conjecture on his part. There is dichotomy between the ruling party and the State Government. Business of the State is conducted as per the rules framed under sub-article (3) of Article 166 of the Constitution of India and is expressed to be taken in the name of the Governor. Government decision is taken by the Council of Ministers and expressed in the name of Governor, who acts as per the aid and advice of the Council of Ministers. There is no legal basis for the submission of the election-petitioner that officers named in paragraphs 18, 19 and 20 of the Examination-in-Chief of the election-petitioner (P.W. 10) were posted in the Constituency before the impugned election were notified on account of political clout exercised by the respondent and on that basis the said submission is rejected.
76. Now, coming to notice dated 24.04.2009 (Annexure-2), it is evident from bare perusal of the said notice that the same was issued under the seal and signature of Sri Bhuvaneshwar Thakur, the then Officer-in-Charge, Mufassil Police Station, Munger. Further perusal of the notice indicates that the noticee (P.W. 1) is taking special interest in the political activity of a particular political party and is trying to impress upon the voters to support the said political party by pressurising them. Some of the complainants have telephonically informed the Officer-in-Charge that on the polling day the noticee along with his supporters is likely to make serious effort to somehow disturb the poll. Correctness of the aforesaid information is being inquired into and action will be taken as per the situation. The noticee was further warned that if any disturbance is caused on the polling day on any of the Booths within his Panchayat, the noticee may be made an accused in the First Information Report, which would be lodged. From the contents of the notice, it is quite evident that the noticee (P.W. 1) was questioned about his political activity and his endeavour to impress upon the voters of his Panchayat to support the political party for which he was canvassing. The notice further went on to inform the noticee that his political activities are being enquired into and if any disturbance is caused on any of the Booths within his Panchayat, he will be made accused in the First Information Report, which would be lodged. Aforesaid notice issued by Sri Bhuvaneshwar Thakur, the then Officer-in-Charge, Mufassil Police Station, Munger is a direct assault on the political activities of the noticee and his choice to support a particular political party, violating his fundamental right under Article 19(1)(a) to (d) of the Constitution of India i.e. right to freedom of speech and expression, to assemble peaceably, to form association and to move freely for canvassing in support of leader of his choice throughout the territory of the country. There may not be any evidence to indicate that aforesaid notice was issued at the instance of the sole respondent and is corrupt practice, within the meaning of sub-section (7) of Section 123 of the Act, committed at the instance of the sole respondent but as the notice is an assault on the fundamental right of the noticee (P.W. 1), the police officer, who issued such notice, causing assault on the political rights of the noticee, was required to have been dealt with/restrained by the superior officers posted in the Constituency at the time of election. The superior officers posted in the Constituency during the impugned election having not taken any steps to restrain the officer who issued notice dated 24.04.2009 (Annexure-2) to P.W. 1 is suggestive of the fact that the superior officers posted in the Constituency were completely unaware of the ground reality as to how the officers at grass root level were directly attacking the civil, political rights of the political party worker affecting the poll result. The officers posted in the Constituency may or may not be of the choice/caste of the sole respondent but the officers did not discharge their official duty in a manner which is reflective of their independence. Services under the Union and the State have been established in terms of Part-XIV of the Constitution of India. Close reading of the different provisions in Chapter 1, 2 of Part-XIV would indicate that the services under the Union and the State are completely independent, as their recruitment, service condition including removal and dismissal are subject to the provisions of the Constitution and not at the mercy of the Government of the day. After imposition of the Model Code of Conduct, the officers are under direct control of the Election Commission of India. The officers posted in the Munger Parliamentary Constituency during the Parliamentary election of 2009 ought to have taken action to ensure exercise of political rights by P.W. 1 and others. Depriving P.W. 1 and others of their political rights to canvass in favour of a candidate of their choice is direct assault on their political rights, which will have serious consequence on the result of poll. To ensure free and fair polling it is necessary that the political workers and others are given a free hand to canvass freely in support of the candidate of their choice. By serving notice dated 24.4.2009 (Annexure-2) and similar other notices the political rights of not only the noticee but also of the general populace of the Constituency to whom noticee could not reach and freely canvass has been seriously compromised. Depriving the noticee and others of their political rights may have affected the poll result because of lack of sincere effort by the superior officer posted in the Constituency. Lack of sincere effort by the superior officer to contain the inferior officer at grass root level depriving the political right of a worker at the ground level, however, cannot be a ground for declaring the impugned election void for the reason of corrupt practice within the meaning of Section 123 of the Act. For ensuring that notice in the nature of Annexure-2 is not issued in future to a political worker, it is necessary that action is taken against the then Station House Officer, Munger Mufassil Police Station, who issued notice dated 24.4.2009 (Annexure-2). Let Director General of Police, Bihar take appropriate action against him in accordance with law within a reasonable time in the light of the contents of notice dated 24.04.2009 (Annexure-2) and the evidence of the noticee (P.W.1) recorded in this Court in the present proceeding and submit report to this Court within a reasonable time. Election Commission of India, Personnel Department of the Union and the General Administration Department of the State Government should also instruct members of the services of the Union and the State respectively that such notice is not issued in future to dampen the spirit of an individual, political worker of a particular party to support canvass in favour of a candidate of his choice.
77. Before coming to the allegation and evidence with respect to Booth capturing, it is necessary to notice the evidence with regard to the booths, which, according to the petitioner, were located in Dharhara Block of Jamalpur Assembly Constituency and Chanan, Ghoghi and Bariarpur area of Suryagarha Assembly Constituency, Bangalwa, Sakhaul and were sensitive, as naxalites operating in the Parliamentary Constituency had given call to boycott the election and taking advantage of the poll boycott there was likelihood of the polling booths being captured by the respondent and miscreants acting on his behalf. P.W. 9 has stated in paragraph 9 of his Examination-in-Chief that the naxalites, operating in the Parliamentary Constituency, had given poll boycott call in the Dharhara Block of Jamalpur Assembly Constituency. He has further stated that naxalites of the area had also given call to boycott poll in Chanan, Ghoghi and Bariarpur area of Suryagarha Assembly Constituency asking the voters not to cast vote with warning that if any voter will cast his vote, his hand would be severed. P.W. 9 further stated in paragraph 10 of his Examination-in-Chief that no voter turned up to cast his vote at Booth Nos. 65 to 77 of Village Bangalwa, Sakhaul etc. in Dharhara Block of Jamalpur Assembly Constituency. In paragraph 11 of the Examination-in-Chief P.W. 9 further stated that no voter turned up on several other Booths of Dharhara Block as also in Chanan, Ghoghi, Bariyarpur area of Suryagarha Assembly Constituency. In this connection election agent of the petitioner filed complaint dated 28.04.2009 (Annexure-5) requesting the Returning Officer to depute Para Military Force on the polling stations located in the aforesaid area in which naxalites had given call to boycott the poll. In paragraphs 25 to 27 of the Examination-in-Chief election-petitioner (P.W. 10) stated that naxalites announced poll boycott in Dharhara Block of Jamalpur Assembly Constituency and Chanan, Ghoghi, Bariyarpur area of Suryagarha Assembly Constituency. Election-petitioner also referred to request of his election agent dated 28.04.2009 (Annexure-5) addressed to the Returning Officer for deployment of Para Military Force in the area where poll boycott was announced by the naxal elements operating in the area but District Administration did not deploy Central Para Military Force at the instance of the respondent and because of this deliberate and mala fide omission to deploy Para Military Force his supporters could not vote on account of fear. In paragraph 29 of the Examination-in-Chief election-petitioner further stated that the District Magistrate as well as Superintendent of Police, Munger, Lakhisarai and Patna district(s) did not deploy Para Military Force on sensitive booths deliberately and thereby misused their power at the instance of the respondent to extend benefit to him. In paragraphs 30, 31 of his Examination-in-Chief election-petitioner further stated that his election agent has also filed representation dated 26,27,29.4.2009 (Annexure-6 series) to the Election Commission informing the Chief Election Commissioner that his voters, supporters of Backward Class, Extremely Backward Class and Dalit of Piparia, Suryagarha, Lakhisarai, Barahiya, Barh and Mokama Blocks are being threatened not to vote by the criminals, musclemen of the respondent. Request was made to declare the polling Booths sensitive and deploy Para Military Forces for ensuring free, fair poll but that was not done. It has been further asserted that because of non-deployment of Para Military Force on the polling Booths of Piparia, Suryagarha, Lakhisarai, Barahiya and Barh Blocks the Booth in those Blocks were captured by the criminals, anti-social elements at the instance of the respondent.
78. In the light of the aforesaid evidence of P.Ws. 9, 10 Returning Officer (R.W.1) was categorically asked by the counsel for the election-petitioner to inform this Court about the fact whether R.W. 1 deputed Central Para Military Force in Bangalwa area of 166 Jamalpur Assembly Constituency. In response to the aforesaid question, R.W. 1 stated that he will have to see the deployment plan of Central Para Military Force drawn for conducting the impugned election. In paragraph 7 of his cross-examination R.W. 1 further stated that it is incorrect to suggest that he did not depute Central Para Military Force at Booth Nos. 66 to 72 of 166 Jamalpur Assembly Constituency where there was nil polling on Booth Nos. 66 to 72 and only one voter came to poll vote on Booth Nos. 73, 74.
79. In the light of the aforesaid evidence of R.W. 1 this Court under order dated 29.01.2014 directed R.W. 1 to appear for further cross-examination on 05.02.2014 at 3:15 P.M. with the deployment-chart of the Para Military Force for 166 Jamalpur Assembly Constituency with further direction to the District Magistrate, Munger to make available the said deployment plan to R.W. 1. In the light of the said direction R.W. 1 did appear for further cross-examination on 05.02.2014 but without the deployment-chart of Central Para Military Force deployed in the impugned election as the same was not traced. Accordingly, direction was given to the present District Magistrate, Munger to trace the deployment-chart of Central Para Military Force deployed in the impugned election, further cross-examination of R.W. 1 was deferred for 19.02.2014. On 19.02.2014 R.W. 1 appeared with the photo copy of the deployment-chart of Central Para Military Force deployed in the impugned election and stated that original of the said deployment-chart has not been traced so far. The present District Magistrate, Munger was also present in Court and stated that efforts to trace the original deployment-chart is still being made and if made available, original deployment-chart shall be produced in this Court before the judgment in the case is reserved. Judgment in the case was reserved on 12.03.2014 but till that date original deployment-chart having not been traced, the same was not produced. It is, thus, evident that original deployment-chart of Central Para Military Force deployed in the impugned election being not available and produced, this Court is unable to record a finding about the deployment of Central Para Military Force in the naxal affected area of the Parliamentary Constituency including Bangalwa area of 166 Jamalpur Assembly Constituency and Booth Nos. 66 to 72, 73, 74 of 166 Jamalpur Assembly Constituency where there was nil polling and one voter each polled vote on Booth Nos. 73, 74.
80. Para Military Force is deployed on sensitive booths to ensure free and fair poll. Deployment-chart of the Central Para Military Force is an important evidence to establish that the Central Para Military Force was deployed on the sensitive Booths. Appreciating the importance of the document, Returning Officer himself stated in his evidence, paragraph 5 of his cross-examination, that to confirm whether Central Para Military Force was deployed on the sensitive Booths in the impugned election, he will have to verify from the deployment-chart. In the circumstances, importance of the deployment-chart for establishing the fact that Para Military Force was deployed considering the sensitivity of the booth for ensuring free, fair election in the Constituency/booths one has to see the chart but chart being not available, it is not possible for this Court to certify that the Central Para Military Force was deployed on the sensitive booths in the area. Necessity of deployment of Central Para Military Force for ensuring free and fair election cannot be disputed but to confirm that impugned election was conducted in a fair manner with the help of Central Para Military Force, it is necessary for this Court to see the deployment chart of Central Para Military Force.
81. The deployment-chart being not available, this Court is unable to confirm the assertion of R.W. 1 that he did deploy Central Para Military Force on the sensitive Booths in the area where naxal elements operating in the Constituency had given call to boycott the poll with threat to the voters that their hand will be severed if they come and vote. Stand of the election-petitioner that naxal elements operating within the Parliamentary Constituency had given poll boycott call in the Bangalwa area of 166 Jamalpur Assembly Constituency and because of non-deployment of Central Para Military Force on the Booths located in that area, namely, Booth Nos. 66 to 72 there was nil polling and on Booth Nos. 73, 74 one voter each turned up to cast his vote, is also confirmed from the Booth Chart of those Booths, there cannot be any difficulty in concluding that on account of non-deployment of Central Para Military Force on Booth Nos. 66 to 72, 73, 74 of 166 Jamalpur Assembly Constituency, there was nil, one vote respectively polled, which is indicative of the fact that poll boycott by the naxal element succeeded, as Central Para Military Force was not deputed on those booths. Failure of the Returning Officer, however, to deploy Para Military Force on sensitive booths, in the instant case Booth Nos. 66 to 72, 73, 74 of 166 Jamalpur Assembly Constituency for ensuring free, fair poll on those sensitive booths together with the fact that there was nil, one vote polled on those sensitive booths, cannot be a ground to declare the impugned election as void on the ground of corrupt practice conducted by the sole respondent.
82. Deployment-chart of Central Para Military Force in the Constituency is an important piece of evidence, indicative of the fact that Central Para Military Force has been deployed on polling Booths which were sensitive and required deployment of Central Para Military Force for ensuring free, fair election. In the present case, had the deployment-chart been made available, there would not have been any difficulty for this Court to confirm the assertion of the Returning Officer that Returning Officer deployed Central Para Military Force on the sensitive booths where naxal had given call for poll boycott and on that basis finding could have been recorded that all possible steps to conduct free and fair election in the Constituency was taken by the Returning Officer even then voters have not chosen to cast their vote on Booth Nos. 66 to 72 and one vote each was polled on Booth Nos. 73, 74 of 166 Jamalpur Assembly Constituency, situation could not have been retrieved in any manner, as nothing more than deployment of Central Para Military Force could have been done for ensuring free, fair voting on those booths. To confirm deployment of Central Para Military Force on the sensitive Booths, in my opinion, it should be the bounden duty of the Returning Officer to preserve the original deployment-chart with joint signature of District Magistrate and Superintendent of Police of the area with the records of the concerned election. Accordingly, I direct the Election Commission of India to issue instruction directing Returning Officer to maintain deployment-chart in original with the records of the election so that the same may be perused as and when necessity to peruse the same arises.
83. Now, coming to the allegation of Booth capturing, as set out in paragraphs 16, 17 and 18 of the Election Petition and representation, Exhibit-X to X/7, X/19 and X/20, I have examined the same with reference to the evidence of P.Ws. 2 to 5 and 6 to 8.
84. P.W. 2 has asserted that he is a voter from Booth No. 157 of Barh Assembly Constituency and was authorized by the election-petitioner to supervise the election work in the Barh Assembly Constituency, for which appointment letter was issued by the Assistant Returning Officer-cum-S.D.O., Barh, Md. Yusuf and on the date of poll he was moving in the Constituency and was in contact with party workers, Booth agent on telephone. In paragraphs 9, 10 of his Examination-in-Chief P.W. 2 has further asserted that on the date of poll he went to Booth Nos. 193, 194, Located in Middle School, Dhanwa at 11:00 A.M. after receiving information from Prakash Yadav, R.J.D. worker of Village Dhanwa and saw that both the Booths were captured by Gunda elements, supporters of sole respondent were casting bogus vote, openly shouting not to allow any Paswan, Koeri to vote. In paragraphs 11, 12 of the Examination-in-Chief P.W. 2 has furnished the name of Bhuttu Kumar, Ram Nandan Prasad Singh, Prakash Yadav and Umesh Paswan as those who were standing in queue waiting for their turn to cast vote but were chased away from the Booth and not allowed to vote. He has also claimed that he informed the incident of Booth capturing to Sri Sujit Kumar, A.S.P., Barh but he laughed at P.W. 2. In cross-examination paragraph 1 itself P.W. 2 has admitted that statement made by him in paragraphs 9,11,12, 13 of his Examination-in-Chief does not find included in the pleadings of the Election Petition.
85. P.W. 3 is voter from Malpur village Booth No. 198 of Mokama Assembly Constituency and further claimed that he was authorized by his party to supervise the election work in the Mokama Assembly Constituency. He has further stated that while supervising the election work on the date of poll he remained in contact with party workers and booth agents on telephone. In paragraph 9 P.W. 3 stated that when he received information about Booth capturing at Booth Nos. 178, 179, 171, 172, 173, 174 and 164 he went to those Booths between 10:00 A.M. to 2:00 P.M. The supporters of sole respondent captured the Booths and were polling bogus vote in his favour. The voters standing in the queue were chased. P.W. 3 further stated in Examination-in-Chief that Booth Nos. 178, 179 are located in Middle School East and West of Village Nauranga Jalalpur and he saw both the Booths being captured by the Home-guards deployed at the Booth casting vote in favour of sole respondent. In paragraphs 12, 13, 14, 15 P.W. 3 stated that Booth Nos. 171, 172, 173, 174 and 164 located in Primary School, Hamja, High School north and south Rampur Dumra, Middle School, Sherpur and at Maranchi High School were captured by the miscreants and supporters of sole respondent, which would be quite evident from the votes polled in favour of the sole respondent on those Booths. In paragraph 17 of his Examination-in-Chief P.W. 3 asserted that the voters who were in queue waiting for the turn were chased away and the Booth agent of R.J.D. were also chased away and not allowed even to sit inside the Booth. In paragraph 1 of the cross-examination P.W. 3 has stated that the pleadings with regard to corrupt practice committed at Booth No. 178, Munger Parliamentary Constituency is contained in paragraph 17 of the Election Petition. In paragraph 2 of the cross-examination he has stated that he was not allowed to enter Booth No. 178 to file his application before the Presiding Officer of Booth No. 178 raising objection regarding Booth capturing at the said Booth and was driven away from the Booth. In paragraph 4 of the cross-examination P.W. 3 clarified that he has given evidence at the instance of the Election Petitioner but in his evidence has only stated what he saw at Booth No. 178. Perusal of Paragraph 17 of Election Petition indicates that thereunder election-petitioner has asserted that Booth Nos. 62 to 72 of Lakhisarai Vidhan Sabha Constituency was captured by Superintendent of Police, Lakhisarai himself who prevented the voters from casting their votes and got polled bogus vote in favour of respondent. In the same paragraph it has further been asserted that police personnel captured Booth No. 178 of Mokama Vidhan Sabha Constituency to prevent the voters from casting their vote. In the same paragraph it has also been asserted that Home-guards prevented voters from casting vote at Booth No. 128-Suryagarha Vidhan Sabha Constituency. In view of the pleadings made in paragraph 17 of the Election Petition that Booth Nos. 62 to 72 of Lakhisarai Vidhan Sabha Constituency, Booth No. 178 of Mokama Vidhan Sabha Constituency and Booth No. 128 of Suryagarha Vidhan Sabha Constituency were captured and voters of those booths were prevented from casting their vote, there appears to be typing mistake in paragraph 1 of the cross-examination of P.W. 3 as in the said paragraph of cross-examination P.W. 3 has stated that pleadings with regard to corrupt practice committed at Booth No. 178 of Munger Parliamentary Constituency has been mentioned in paragraph 17 of the Election Petition, which is mistake as in Paragraph 17 of the Election Petition assertion has been made about corrupt practice committed at Booth No. 178 of Mokama Assembly Constituency besides other booths of Mokama and Lakhisarai Assembly Constituency.
86. P.W. 4 Mannu Mistri is resident of village- Bahapar within Nauranga Jalalpur Gram Panchayat, P.S. Maranchi, District- Patna, where he is a private cycle mechanic, furniture maker. He is a voter from Booth No. 178 of Mokama Assembly Constituency located in the Veterinary Hospital, Bahapar. He further stated that impugned election was held on Thursday i.e. 30.04.2009 and he came to the Booth between 9:00-9:30 A.M. and saw 10-15 villagers waiting in the queue to cast their vote. He also stood in the queue waiting for his turn to cast his vote. In paragraphs 8,9 and 10 of the Examination-in-Chief P.W. 4 stated that after 10-15 minutes 8-10 leader, miscreant type persons came to the Booth in a motor-car shouting slogan œLalan Singh Jindabad?, entered the Booth and resorted to assault on the voters who were waiting in the queue, having captured the booth chased the voters. In the same paragraph P.W. 4 further stated that out of fear he also ran away and came outside the booth but remained standing outside the booth where he met Surendra Prasad, a co-villager and saw that Neta type miscreants and Home-guards deployed at the booth polled bogus vote through the Electronic Voting Machine. In Paragraph 12 P.W. 4 further stated that one Netaji of R.J.D. also came in a motor-car at about 10:00 A.M. introduced himself as Anand Kumar. P.W. 4 also asserted in the same paragraph that he raised protest about booth capturing to the policemen present at the booth but they did not allow him to enter the booth. In paragraph 1 of the cross-examination P.W. 4 has denied the suggestion that he cannot become a witness in support of the Election Petition as his name is not included in the Election Petition as the one who was prevented from casting his vote at Booth No. 178 is not correct. P.W. 4 further stated in the same paragraph that he being a voter of Booth No. 178, his name though not included in the Election Petition as the one who was prevented from voting at that booth, he having been summoned to appear as a witness in the case to state the fact of being prevented from voting, is entitled to record his evidence.
87. P.W. 5 Surendra Prasad is resident of village- Bahpar P.S. Maranchi, District- Patna and voter from Booth No. 178 of Mokama Assembly Constituency located in Veterinary Hospital, Village- Bahpar. Evidence of P.W. 5 is also on the similar lines as that of P.W. 4. P.W. 5 was waiting for his turn in the queue to cast his vote along with Mannu Mistri (P.W. 4). There were 10-15 voters in the queue. In paragraphs 9, 10 of the Examination-in-Chief P.W. 5 has stated that between 9:00-9:30 A.M. 8-10 persons came on a motor-car, 2-3 persons amongst those who arrived in motor-car were clad in white Khadi Kurta Pajama like Netaji and rest were clad in shirt-pant and looked like miscreants. They also raised slogan- œLalan Singh Jindabad? and chased the voters standing in the queue after assaulting them. Having chased the voters the miscreants captured the Booth, whereafter 2-3 Netaji type men, Home-guard and policemen deployed at the Booth proceeded to cast bogus vote through Electronic Voting Machine. Other policemen and Gunda type men kept the voters outside the Booth by creating terror at the Booth and no one could dare to protest out of fear. The Home-guards and the supporters of sole respondent went on to cast bogus vote in his favour by capturing the polling Booth. In paragraph 14 P.W. 5 also admitted that one Netaji of R.J.D. had come at the polling Booth at 10:00 P.M. He disclosed his name as Anand Kumar. P.W. 5 claims that he and others told Anand Kumar about Booth capturing and chasing away of the voters. According to P.W. 5 Anand Kumar tried to protest but was not allowed by the police to come inside the Booth. In paragraph 1 of his cross-examination P.W. 5 has admitted that in the Election Petition his name has not been included or disclosed as the one who was restrained from casting his vote. In Paragraph 2 of the cross-examination P.W. 5 has further denied the suggestion that he cannot depose in support of the Election Petition.
88. P.W. 6 Munna Singh is resident of Village- Lal Diara, P.S. Piparia, District- Lakhisarai and voter from polling Booth No. 72, situate at Madhya Vidyalaya, Lal Diara of Lakhisarai Assembly Constituency. He has stated in his Examination-in-Chief that he came to the polling Booth to cast his vote on 30.04.2009 at 8:00 A.M. and was waiting in the queue to cast his vote. The queue was, however, not moving forward and he kept standing at the same place for about half an hour. When he tried to ascertain as to why the queue is not moving ahead, he saw 4-5 supporters of sole respondent inside the room where the Electronic Voting Machine was kept and they along with other supporters of sole respondent were casting votes. Other supporters of the sole respondent remained standing in the queue making no room for others to go ahead and cast vote. P.W. 6 further stated that several heavy built miscreant type supporters of the sole respondent kept close watch on the voters stating that no one should be allowed to cast his vote. He also stated that polling agent of R.J.D. candidate was threatened and forced to leave the Booth. In Paragraph 12 P.W. 6 stated that the policemen and the Home-guards were helping the supporters of J.D. (U). In paragraph 13 P.W. 6 further stated that polling booth was captured by J.D. (U) supporters and they were casting bogus vote in favour of sole respondent. In paragraph 14 P.W. 6 further stated that at about 9:00 A.M. crowd/villagers gathered at the booth. Members of weaker section, who were mostly supporters of the election-petitioner, were not being allowed to come in the queue by J.D. (U) supporters and they were being asked to leave the Booth, their vote would be cast, failing which they may have to face ill consequences. It is also stated by P.W. 6 that members of weaker section became afraid, did not come in the queue but remained standing at the booth. In paragraphs 15, 16 P.W. 6 stated that between 9:00-9:15 A.M. he was standing in the queue for an hour to cast his vote. Superintendent of Police, Lakhisarai Shuklaji came at the polling Booth with police force and asked the crowd of voters standing at the Booth to disperse. The policemen chased the voters/villagers of weaker section. P.W. 6, however, was not chased. In paragraph 17 P.W. 6 further stated that he saw Superintendent of Police, Lakhisarai entering the Booth and talking to J.D. (U) supporters, who were casting bogus vote in favour of sole respondent. In paragraphs 18 to 21 and 24 of the Examination-in-Chief P.W. 6 again stated that Superintendent of Police, Lakhisarai ordered the policemen to chase the voters who were in queue and he himself came out and chased away the voters in queue including one R.J.D. worker Rajiv Ranjan Kumar Rai (P.W. 8) and further asked the policemen not to allow any-one to enter the polling booth. According to P.W. 6 the voters were chased far away from the polling Booth. Superintendent of Police, Lakhisarai left the booth after about 15 minutes in his vehicle. In paragraph 22 P.W. 6 asserted that Superintendent of Police, Lakhisarai himself captured the booth and facilitated the J.D. (U) supporters to cast bogus vote in favour of sole respondent. In paragraph 1 of the cross-examination P.W. 6 has admitted that the contents of his Examination-in-Chief has not been mentioned in the Election Petition including the fact that he was restrained from casting his vote in the impugned election at Booth No. 72. In paragraph 2 of the cross-examination P.W. 6, however, volunteered to state that he was waiting in the queue for his turn to cast vote at Booth No. 72 but Superintendent of Police Sri Shukla arrived in the Middle School, Lal Diara premises and went inside the booth and thereafter drove away all those who were standing either in the queue or in the field of the Middle School, Lal Diara for casting vote and thereby restrained the voters from casting vote at Booth No. 72, situate in the Middle School campus. In paragraph 3 of the cross-examination P.W. 6 denied the suggestion that he has given false evidence in Court.
89. P.W. 7 Ram Bhajan Rai is resident of Village- Malpur, P.S.- Piparia, District- Lakhisarai and voter from Booth No. 68 of Lakhisarai Assembly Constituency located in Middle School, Malpur. It has been stated by P.W. 7 in paragraph 7 of his Examination-in-Chief that he came to the Booth between 8:00-9:00 A.M. for casting his vote, but the Booth was captured by J.D.(U) supporters. In paragraphs 9 to 12 of the Examination-in-Chief P.W. 7 has further stated that Superintendent of Police, Lakhisarai came to the Booth at 9:00 A.M., captured the Booth by remaining present at the Booth for about 15-20 minutes. In his presence 4-5 J.D.(U) supporters polled bogus vote in favour of sole respondent and that Superintendent of Police, Lakhisarai chased away the voters standing in the queue at the Booth and asked the policemen not to allow anyone to enter the Booth. In paragraph 13 of the Examination-in-Chief P.W. 7 stated that one R.J.D. worker. P.W. 8 came to the Booth at about 10:00 A.M. to raise protest but was also chased away. In paragraph 1 of the cross-examination P.W. 7 stated that his name is not included in the Election Petition as the one who was restrained from casting his vote at Booth No. 68 in the impugned election. In paragraph 2 of the cross-examination P.W. 7 further admitted that his name has not been mentioned in the Election Petition as a voter who was restrained from casting his vote but as it is true that he was restrained from casting his vote, he is always at liberty to appear as a witness. In paragraph 2 of the cross-examination P.W. 7 further denied the suggestion that he cannot appear as a witness to support the allegations set out in the Election Petition as his name is not included in the Election Petition as the one who was restrained from casting his vote. In paragraph 4 of the cross-examination P.W. 7 denied the suggestion that he is a tutored witness.
90. P.W. 8 Rajiv Ranjan Kumar Rai is resident of village- Piparia Diara and voter from Polling Booth No. 73, located at Madhya Vidyalaya, Piparia Diara of Lakhisarai Assembly Constituency. In paragraph 7 of the Examination-in-Chief P.W. 8 stated that during the impugned election he was entrusted by the election-petitioner to work as a party organizer and election campaigner within the area of Piparia police station. He was also entrusted by the election-petitioner to supervise the polling booths on the day of poll i.e. 30.04.2009. In paragraph 8 of the Examination-in-Chief P.W. 8 stated that he came to cast his vote at his Polling Booth No. 73, Madhya Vidyalaya, Piparia Diara on 30.04.2009 at 7:30 A.M. when the polling was proceeding peacefully. In paragraph 9 of the Examination-in-Chief P.W. 8 stated that he remained in continuous contact with his party worker on mobile phone and visited the polling Booths of his area on his motorcycle. In paragraph 10 of the Examination-in-Chief P.W. 8 stated that as and when he received information from party workers about Booth capturing or polling of bogus vote, he immediately reached the said polling Booth and watched the proceedings as also informed his party Election Office, party candidate i.e. election-petitioner, Dy.S.P., Lakhisarai, Election Observer etc. In paragraph 11 of the Examination-in-Chief P.W. 8 stated that having received information from Booth No. 72 that the booth has been captured by J.D.(U) supporters and the policemen from his party worker Munna Singh (P.W. 6), he reached the polling Booth and saw polling Booth No. 73 captured by J.D.(U) supporters, policemen. In paragraph 12 of the Examination-in-Chief P.W. 8 further stated that in his presence Superintendent of Police, Lakhisarai came at the polling booth with police force between 9:00-9:15 A.M. and went inside the booth and after five minutes ordered the policemen to chase the persons present at the booth, the voters standing in queue. The police force chased all the voters in queue and the villagers standing near the polling Booth. The said Booth was captured by Superintendent of Police, Lakhisarai in favour of J.D. (U) candidate. In paragraph 13 of the Examination-in-Chief P.W. 8 asserted that he raised protest but was also chased away. In paragraph 14 of the Examination-in-Chief P.W. 8 further stated that he received information about Booth capturing, bogus voting being polled from his party worker from all the Booths of Khutaha Dih East Gram Panchayat and Khutaha Dih West Gram Panchayat in favour of J.D.(U) candidate. In paragraph 15 P.W. 8 stated that he visited the polling Booth No. 68 at Madhya Vidyalaya, Malpur on getting information of booth capturing by Superintendent of Police, Lakhisarai himself and J.D.(U) supporters. In the same paragraph he has further stated that one of the voter, Ravi Ranjan Rai told him that he and other voters were in queue to cast vote but were chased away by the policemen on the order of Superintendent of Police, Lakhisarai. In paragraph 16 of the Examination-in-Chief P.W. 8 further stated that he visited the polling Booth at High School, Khutaha Dih West and found Superintendent of Police, Lakhisarai sitting there. Superintendent of Police, Lakhisarai stayed at High School, Khutaha Dih for about 15 minutes and during his stay of 15 minutes, about 50 per cent bogus votes were cast in favour of J.D.(U) candidate, whereafter he left the polling Booth. In paragraph 17 of the Examination-in-Chief P.W. 8 stated that Superintendent of Police, Lakhisarai himself actively participated in booth capturing at Booth Nos. 62 to 72 of Lakhisarai Assembly Constituency in favour of J.D.(U) candidate. In paragraph 18 P.W. 8 stated that the polling agent of R.J.D. candidate at almost every booth were threatened and forced to leave the booth. In paragraph 19, 20 of the Examination-in-Chief P.W. 8 further stated that the policemen and the Home-guards, deployed at Booth Nos. 62 to 72 and other booths including polling booths of Khutaha Dih East and Khutaha Dih West Panchayat helped the supporters of J.D.(U) candidate in capturing the booth and casting bogus vote in favour of sole respondent. In paragraph 1 of his cross-examination P.W. 8 has stated that he polled his vote at Booth No. 73, Middle School, Piparia, Diara within Lakhisarai Assembly Constituency. In paragraphs 9, 10 and 11 of the cross-examination P.W. 8 has stated that when he went to cast his vote at 7:30 in the morning, there were 10-15 voters in the queue. Just ahead of him in the queue was his father Sri Nikhedi Rai and following him was Vikas Rai, his cousin. In paragraphs 12, 13 of his examination-in-Chief P.W. 8 has stated that he was not the Polling Agent of the election-petitioner at Booth No. 73 and he does not remember the name of the Polling Agent at Booth No. 73. In paragraph 18 of the cross-examination P.W. 8 has stated that he is not a functionary of the Rashtriya Janta Dal Party. In paragraph 20 of his cross-examination P.W. 8 has stated that on the date of polling he did not file any complaint before the Returning Officer alleging misconduct against Sri Shukla. Even after the date of polling, he did not file any complaint against Sri Shukla before the Returning Officer. In paragraph 21 of the cross-examination P.W. 8 further admitted that police force at the Booth comprised of members of Bihar Police, Home-guard and C.R.P.F. He further stated in the same paragraph that with the Superintendent of Police also members of Bihar Police, Home-guard, C.R.P.F. as also other force in black dress was present. In paragraph 22 of the cross-examination P.W. 8 stated that he did not enter Booth No. 73 again after he cast his vote at the Booth. In paragraph 26 of the cross-examination P.W. 8 has stated that he watched the proceedings at Booth No. 72 from a distance of 100-150 ft. In paragraph 27 of the cross-examination P.W. 8 stated that having cast his vote at Booth No. 73, he came back to his house, took lunch and after he received call on mobile, came back to Booth No. 72 and watched the proceedings of that Booth from a distance of 100-150 ft. In paragraph 28 of the cross-examination P.W. 8 stated that distance between Booth No. 72 and 73 is about 3-4 K.M. In paragraph 31 of the cross-examination P.W. 8 further admitted that he did not file any application about the irregularities seen by him at Booth Nos. 72, 73 to the Returning Officer, either on the polling day or on the day following. In paragraph 32 of the cross-examination P.W. 8 further admitted that election-petitioner had not issued any written order asking him to watch the proceedings at Booth Nos. 72, 73. In paragraph 33 of the cross-examination P.W. 8 has denied the suggestion that the affidavit containing his Examination-in-Chief has been prepared on the instruction of the election-petitioner.
91. It appears P.W. 2 having received information from Prakash Yadav, R.J.D. worker of Village- Dhanwa came to Booth Nos. 193, 194 of Barh Assembly Constituency located in Middle School, Dhanwa at about 11:00 A.M. and saw that the two Booths have been captured by the miscreants and supporters of sole respondent and they were casting bogus vote. He, however, has not given the name of any voter of Booth Nos. 193, 194 who in his presence was scared away from the Booth and not allowed to cast his vote. Name of P.W. 2 has also not been included in the Election Petition as the one who was made in-charge to supervise the polling on behalf of the election-petitioner in Barh Assembly Constituency and that he saw Booth Nos. 193, 194 of Barh Assembly Constituency being captured by the supporters of sole respondent. His name has also not been included in any of the annexures appended with the Election Petition in which complaint about Booth capturing on the date of poll has been submitted to the Returning Officer or the Election Commission of India. Similar is the status of the evidence of P.Ws. 3, 4 and 5 that different Booths of Mokama Assembly Constituency including Booth Nos. 178, 179 situate in Middle School Nauranga Jalalpur were captured by the musclemen, miscreants operating in the Constituency to cast bogus vote in favour of sole respondent.
92. Now I consider the evidence of P.Ws. 6 to 8 that Booth Nos. 62 to 72 of Lakhisarai Assembly Constituency was captured by Superintendent of Police, Lakhisarai, Sri Shiveshwar Prasad Shukla. P.W. 6 has stated in his evidence that he came to cast his vote at Booth No. 72 of Lakhisarai Assembly Constituency located in Madhya Vidyalaya, Lal Diara at about 8:00 A.M. and stood in the queue behind 20-25 others. The queue was, however, not moving forward. He tried to know as to why the queue is not moving ahead and then saw 4-5 supporters of sole respondent inside the room where the Electronic Voting Machine was kept and they were casting vote. Other supporters of sole respondent kept standing in the queue making no room for others to move ahead and cast vote. At about 9:00 A.M. villagers (voters of weaker section, mostly supporters of R.J.D. candidate) gathered at the Booth but were not allowed to come in the queue by the supporters of sole respondent and were asked to leave the Booth. Superintendent of Police, Lakhisarai Sri Shukla came to the Booth between 9:00-9:15 A.M. with police force and ordered the policemen deployed at the booth as also present with him to disperse the crowd of voters standing at the Booth. The policemen under orders from Superintendent of Police, Lakhisarai chased away the villagers/voters of weaker section, whereafter it was free for the supporters of the sole respondent to cast bogus vote in his favour. Similar is the evidence of P.W. 7 Ram Bhajan Rai, voter from Booth No. 68, located in Middle School, Malpur. Coming to the evidence of P.W. 8 it appears he is a voter from Booth No. 73 of Lakhisarai Assembly Constituency and was instructed by Rastriya Janta Dal party to supervise the polling booths on the day of election within the area of Piparia Police Station. He went to cast his vote at Booth No. 73 around 7:30 in the morning. Having cast his vote, came back, took lunch and received telephonic information on his mobile that Booth No. 72 situate at a distance of 3-4 K.M. from his Booth No. 73 has been captured by Superintendent of Police, Lakhisarai. He went there and saw from a distance of 100-150 ft. that voters waiting to cast their vote at the Booth have been chased away by the policemen accompanying Superintendent of Police, Lakhisarai. He also made attempt to protest but was driven away from the booth.
93. P.W. 6 to 8 have also not given name of any voter of Booth Nos. 72, 68, 72 respectively, who in his presence was scared away from booth and not allowed to cast his vote. Name of P.Ws. 6, 7 has also not been included in the Election Petition as the one who were voters from their respective booths in the impugned election and were chased away from the booth at the instance of Superintendent of Police, Lakhisarai and thereby prevented from casting vote and that they saw Booth Nos. 72, 68, 72 of Lakhisarai Assembly Constituency, being captured by the supporters of sole respondent with the aid and assistance of Superintendent of Police, Lakhisarai. Their name has also not been included in any of the annexures appended with the Election Petition in which complaint about Booth capturing on the date of poll has been submitted to the Returning Officer or the Election Commission of India. There is also no contemporaneous material/document to suggest that P.Ws. 6, 7 were prevented from casting their vote at the instance of Superintendent of Police, Lakhisarai. P.W. 8 claimed himself to be an active Rastriya Janta Dal party worker and entrusted with the job to supervise the polling booths on the date of poll within the area of Piparia police station yet report received from him that in his presence Booth No. 72 of Lakhisarai Assembly Constituency was captured at the instance of Superintendent of Police, Lakhisarai has not been mentioned in any of the contemporaneous document nor in the Election Petition that information about capturing of Booth No. 72 by Superintendent of Police, Lakhisarai has been received from him. Such vital omission in the Election Petition as also in the contemporaneous documents dated 30.04.2009 appended therewith (Annexure-8 series) is indicative of the fact that claim of P.W. 6 to 8 that they have seen capturing of the aforesaid booths by Superintendent of Police, Lakhisarai was not reported by them at the relevant time to the election-petitioner, his election agent or to the party office at Munger and not included in the contemporaneous document. They have chosen to become witness in course of the present proceeding. Even otherwise they having not named the voter who was restrained from casting his vote, genuine doubt is raised about correctness of their testimony. Reliance in this connection is placed on the judgment of the Patna High Court in the case of Chandrashekhar Singh Vs. Sarjoo Prasad Singh and another (supra) as also of the HonŸble Supreme Court in the case of Samant N. Balakrishna, etc. Vs. George Fernandez and others etc. (supra), Azhar Hussain Vs. Rajiv Gandhi (supra), ignoring the submission of learned counsel for the election-petitioner that Sections 123, 135 of the Act has been brought on the Statute Book by Act 1 of 1989 with effect from 15.03.1989 and the decision in the case of Chandrashekhar Singh Vs. Sarjoo Prasad Singh and another (supra), Samant N. Balakrishna, etc. Vs. George Fernandez and others etc. (supra), Azhar Hussain Vs. Rajiv Gandhi (supra) were rendered earlier. The fact that aforesaid decisions were rendered earlier will have no bearing on the principle of appreciation of evidence. In this connection it has to be appreciated that evidence ofprosecution witnesses asserting capturing of booth preventing a voter from casting his vote is required to be appreciated in the light of the corroborative evidence of the voter who has been prevented from casting his vote on a particular booth with reference to the contemporaneous record i.e. 17-A VotersŸRegister maintained during the course of election and other documents. In the instant case prosecution witnesses have only claimed that particular booths were captured in their presence. The witnesses, however, have neither indicated the name of the voters who were prevented from casting their vote nor the name of the witnesses nor those prevented from casting their vote has been mentioned either in the contemporaneous document or in the Election Petition, as such, it is unsafe to rely on the evidence of P.Ws. that particular booths were captured. The charge of booth capturing is required to be proved beyond reasonable doubt. In the facts of the present case and the nature of the evidence led, I am satisfied that there is reasonable doubt about the veracity of the deposition of the eye-witnesses.
94. In view of my findings recorded in paragraph 74 to 93, the Election Petition is dismissed, of course subject to the observation/direction contained in paragraphs 76, 82.
95. Let a copy of this judgment be forwarded to the concerned Ministry of the Union and the department of the State Government as also to the Election Commission of India for needful.