Shri Maibam Sarat Singh vs Langpoklakpam Jayantakumar ...
2022 Latest Caselaw 40 Mani

KABORA Digitally signed                                              (through video conferencing)
        by
MBAM KABORAMBAM
                                IN THE HIGH COURT OF MANIPUR
SANDEEP SANDEEP   SINGH
        Date: 2022.02.08                  AT IMPHAL
SINGH   14:59:20 +05'30'


                                       EL. PET. No. 11 of 2017
                                                with
                                       MC (EP) No. 26 of 2021
                                                with
                                        MC (EP) No. 1 of 2022
                                                    ***

E.P. No. 11 of 2017

1. Shri Maibam Sarat Singh, aged about 68 years, S/o M. Brajabidhu Singh of Kwakeithel Akham Leikai, P.O.- Imphal & P.S. Singjamei, Imphal West District, Manipur - 795001.

2. Smt. Yendrembam Indira Devi, aged about 66 years, W/o. (Late) L. Ibomcha Sngh, resident of Keishamthong Laisom Leirak, P.O. & P.S. - Imphal, Imphal West District, Manipur - 795001.

Petitioners

[Substituted in the place of Laisom Ibomcha Singh, aged about 68 years, son of late L. Tomba Singh, resident of Keishamthong Laisom Leirak, PO & PS : Imphal, District: Imphal West, Manipur, the original petitioner, vide order dated 19.03.2021 passed in MC (E.P.) No. 12 of 2021 and MC(E.P.) No. 13 of 2021]

-Versus-

1. Langpoklakpam Jayantakumar Singh, aged about 55 years, son of late Dr. L. Bhagyachandra Singh, resident of Pishumthong Oinam Leikai, P.O. Imphal, PS Singjamei, District: Imphal West, Manipur.

2. Rajkumar Shivachandra Singh, aged about 51 years, son of late Rajkumar Sanayaima Singh, resident of Kwakeithel Laishom Leikai, PO: Imphal PS Singjamei, District: Imphal West, Manipur.

3. Potsangbam Dhanakumar Singh, aged about 61 years, son of late Potsangbam Kalachand Singh, resident of Haobam Marak Ngangom Leikai, PO: Imphal, PS Singjamei, District: Imphal West, Manipur.

4. Heisnam Lokeshwar, aged about 52 years, son of late H. Mangoljao, resident of Sega Road Khwairakpam Leikai, PO & PS: Imphal, District: Imphal West, Manipur.

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 1

5. Khaba Paonam, aged about 33 years, son of Paonam Tejamani, resident of Keishamthong Hodam Leirak, PO & PS: Imphal, District: Imphal West, Manipur.

6. Yumnam Romola Devi, aged about 47 years, daughter of Yumnam Birendro Singh, resident of Keishamthong Elangbam Leikai, PO & PS: Imphal, District: Imphal West, Manipur.

7. Changamayum Ganeshlal Singh, aged about 52 years, son of late Changamayum Brajabidhu Singh, resident of Pishumthong Ningom Leirak, PO: Imphal, PS: Singjamei, District: Imphal West, Manipur Respondents

with

MC (E.P.) No. 26 of 2021

Langpoklakpam Jayantakumar Singh, aged about 55 years, S/o. Late Dr. L. Bhagyachandra Singh, resident of Pishumthong Oinam Leikai, P.O. Imphal, PS Singjamei, District: Imphal West, Manipur.

-Versus-

1. Shri Maibam Sarat Singh, aged about 68 years, S/o M. Brajabidhu Singh of Kwakeithel Akham Leikai, P.O.- Imphal & P.S. Singjmei, Imphal West District, Manipur - 795001.

2. Smt. Yendrembam Indira Devi, aged about 66 years, W/o. (Late) L. Ibomcha Sngh, resident of Keishamthong Laisom Leirak, P.O. & P.S. - Imphal, Imphal West District, Manipur - 795001.

Opposite Parties/Petitioners

3. Rajkumar Shivachandra Singh, aged about 51 years, son of late Rajkumar Sanayaima Singh, resident of Kwakeithel Laishram Leikai, P.O. Imphal, PS Singjamei, District: Imphal West, Manipur.

4. Potsangbam Dhanakumar Singh, aged about 61 years, son of late Potsangbam Kalachand Singh, resident of Haobam Marak Ngangom Leikai, PO: Imphal, PS Singjamei, District: Imphal West, Manipur.

5. Heisnam Lokeshwar, aged about 52 years, son of late H. Mangoljao Singh, resident of Sega Road Khwairakpam Leikai, PO & PS: Imphal, District: Imphal West, Manipur.

6. Khaba Paonam, aged about 33 years, son of Paonam Tejamani, resident of Keishamthong Hodam Leirak, PO & PS: Imphal, District: Imphal West, Manipur.

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 2

7. Yumnam Romola Devi, aged about 47 years, daughter of Yumnam Birendro Singh, resident of Keishamthong Elangbam Leikai, PO & PS: Imphal, District: Imphal West, Manipur.

8. Changamayum Ganeshlal Singh, aged about 52 years, son of late Changamayum Brajabidhu Singh, resident of Pishumthong Ningom Leirak, PO: Imphal, PS: Singjamei, District: Imphal West, Manipur Respondents

with MC (E.P.) No. 1 of 2022

Smt. Yendrembam Indira Devi, aged about 67 years, W/o. (Late) L. Ibomcha Sngh, resident of Keishamthong Laisom Leirak, P.O. & P.S. - Imphal, Imphal West-District, Manipur - 795001.

Applicant

-Versus-

1. Langpoklakpam Jayantakumar Singh, aged about 59 years, S/o. Late Dr. L. Bhagyachandra Singh, resident of Keishamthong Oinam Leikai, PO & PS - Imphal, PS, Imphal West District, Manipur-795001;

2. Rajkumar Shivachandra Singh, aged about 55 years, S/o. Late Rajkumar Sanayaima Singh, resident of Kwakeithel Laishram Leikai, P.O. & P.S. - Imphal, Imphal West District, Manipur - 795001.

3. Potsangbam Dhanakumar Singh, aged about 65 years, S/o. Late Potsangbam Kalachand Singh, resident of Haobam Marak Ngangom Leikai, PO: & P.S. Imphal, Imphal West District, Manipur - 795001.

4. Heisnam Lokeshwor Singh, aged about 56 years, S/o. Late H. Mangoljao, resident of Sega Road Khwairakpam Leikai, PO & PS Imphal, Imphal West District, Manipur-795001.

5. Khaba Paonam, aged about 37 years, S/o Paonam Tejmani Singh, resident of Keishamthong Hodam Leirak, PO & PS:- Imphal, Imphal West District, Manipur-795001.

6. Yumnam Romola Devi, aged about 51 years, D/o. Yumnam Birendro Singh, resident of Keishamthong Elangbam Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur-795001.

7. Changamayum Ganeslal Singh, aged about 56 years, S/o. Late Changamayum Brajabidhu Singh, resident of Pishumthong Ningom Leirak, P.O. & P.S. Imphal, Imphal West District, Manipur- 795001.

Respondents

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 3 BEFORE

HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR

For petitioner No.1 : Mr. RK Milan & Mr. RK Maichael, Advocates (not present).

   For petitioner No.2                      Mr. Ajoy Pebam, Advocate.
   For respondent No.1                  :   Mr. Siddhartha Shankar Dey,
                                            Senior Advocate, assisted by
                                            Mr. A.Golly, Advocate.
   Date of last hearing and             :   27.01.2022
   reserving of Judgment & Order
   Date of Judgment & Order             :   08.02.2022



                     JUDGMENT & ORDER (CAV)

Elections to the 11th Legislative Assembly of the State of Manipur

were held on 04.03.2017. The election results were declared on 11.03.2017.

Langpoklakpam Jayantakumar Singh, respondent No. 1 in this

election petition, the candidate of the National People's Party, was declared

elected from 12-Keishamthong Assembly Constituency, with 10,000 votes out

of the total 23,111 votes. Laisom Ibomcha Singh, the original petitioner in this

election petition, sponsored by the Indian National Congress, secured the

second position with 6,739 votes. Rajkumar Shivachandra Singh of the

Bharatiya Janata Party, respondent No.2 herein, stood third with 5,003 votes.

Respondents No. 3 to 7 were the other candidates in the election from this

constituency but they secured far lesser votes.

This election petition was filed on 24.04.2017. The prayer of the

original petitioner was to declare the election of respondent No. 1 from

12-Keishamthong Assembly Constituency as void and to declare him as the duly

elected candidate from the said constituency.

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 4 [2] The original petitioner in this election petition died on 23.01.2021.

MC (EP) No. 12 of 2021 was filed by one Maibam Sarat Singh, a voter of

12-Keishamthong Assembly Constituency, under Section 112(3) of the

Representation of the People Act, 1951 (for brevity, 'the Act of 1951'), seeking

to be substituted as a petitioner so as to continue the proceedings in this election

petition. Similarly, MC (EP) No. 13 of 2021 was filed by Yendrembam Indira

Devi, the widow of the original petitioner, praying to be substituted as a petitioner

and to be allowed to continue the proceedings in the election petition. Both these

applications were ordered on 19.03.2021. Maibam Sarat Singh and

Yendrembam Indira Devi were accordingly substituted as petitioners No. 1 and

2 in this election petition in the place of the original petitioner.

[3] In essence, three grounds were urged by the original petitioner in

this election petition in support of his allegation that the election of respondent

No. 1 was void in terms of Section 100 of the Act of 1951:

i) That the acceptance of respondent No.1's nomination was

improper and such illegal acceptance of his nomination materially

affected the result of the election. The basis for this ground was

that respondent No. 1 had failed to open a separate bank account

for his election expenses in accordance with the directions/

instructions of the Election Commission of India.

ii) That respondent No.1 had sworn to a false affidavit while filing his

nomination, wherein he stated that he had no Government dues,

except for a motor car advance, though he had pending

Government dues, viz., land revenue dues for his landed property.

iii) That respondent No.1 failed to maintain a true and proper account

of his election expenses from the date of nomination till the date of

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 5 declaration of the election result, thereby violating the provisions

of Section 77 of the Act of 1951, and such violation constituted a

corrupt practice.

[4] Respondent No. 1 filed his Written Statement along with

Annexures on 07.08.2017, contesting the pleas put forth in the election petition

on technical grounds as well as on merits. Thereupon, the original petitioner

sought the leave of this Court and filed his Replication along with Annexures on

23.01.2018. In turn, respondent No. 1 filed a Surrejoinder thereto on 03.10.2018,

after obtaining permission from this Court.

[5] Three issues were framed in this election petition on 08.08.2019.

These issues read as under:

'i) Whether the respondent No. 1 failed to open a separate Bank

Account for the purpose of his election expenditure at least one

day prior to the date of his nomination being filed on 13.02.2017

as per the mandatory instructions of the Election Commission of

India as contained in its letter dated 15.10.2013 and if the answer

is in the affirmative, whether the acceptance of his nomination

paper by the Returning Officer has materially affected the result of

the election.

ii) Whether the respondent No. 1 has filed a false affidavit as regards

the Government dues and in particular, the land revenue payable

to the Government in respect of his landed property at Wangkhem

Village, Keirao Bitra?

iii) Whether the respondent No. 1 has given a false statement in his

affidavit filed in respect of the election expenses and in particular,

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 6 the expenditures for the period from 13.02.2017 to 15.02.2017 as

regards the nomination fee deposited by him on 13.02.2017.'

[6] On 11.09.2020, this Court noted that no physical hearing would be

possible in the light of the notification issued by the High Court of Manipur due

to the Covid-19 pandemic and directed that recording of evidence in this election

petition be conducted by a local Commissioner appointed by the Court.

Thereafter, on 05.10.2020, Mr. Ch. Momon, Advocate, was appointed as the

local Commissioner to record the evidence of witnesses in this case.

[7] The original petitioner examined himself as PW-1 and Maisnam

Manikchand Singh, one of his Election Agents, as PW-2. Respondent No. 1

examined himself as DW-1. He examined Maisnam Jagajit Singh, Yumnam

Guneshwor @ Yaima Singh and Irengbam Bimolchandra, his Election Agents,

as DW-2, DW-3 and DW-4 respectively. Arthur Worchuiyo, the then District

Election Officer, Imphal West, was examined as Official Witness No. 1 and

Goswaimayum Sorojini Devi, the then Election Officer, Imphal West, was

examined as Official Witness No. 2.

Exs. P-1 to P-29 were adduced as documentary evidence by the

original petitioner. Some of these exhibits were marked subject to the objections

raised by respondent No. 1 as to the evidentiary value of the document in

question, as it was not an original or certified copy and had not been filed in due

course of law. Such objections were raised in relation to Exs. P-3, P-6 and P-9

to P-28. Exs. D-1 to D-8 were marked in evidence by respondent No. 1.

Exs. X-1 to X-4 were marked in evidence by the official witnesses.

[8] MC (EP) No. 26 of 2021 filed by respondent No. 1 was numbered

as such on 18.08.2021. Therein, he prayed for rejection and return of the

documents filed by the original petitioner as Annexures A-11 to A-28 along with

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 7 his Replication. This prayer was made on the ground that no leave application

was filed by the original petitioner to file such documents beyond the prescribed

period of 45 days from the date of election of the returned candidate. Be it noted

that these documents were marked in evidence during the trial, subject to

respondent No.1's objections.

[9] MC (EP) No. 1 of 2022 was filed on 21.01.2022 by the substituted

petitioner No. 2, the widow, to reopen the trial so as to call H. Jadumani Singh,

Election Officer, as an additional witness and to grant her permission to mark

the documents submitted by him as secondary evidence. This application was

filed during the course of the hearing of this election petition.

[10] Heard Mr. Ajoy Pebam, learned counsel for substituted petitioner

No. 2, the widow of the original petitioner; and Mr. Siddhartha Shanker Dey,

learned senior counsel, assisted by Mr. A. Golly, learned counsel, appearing for

respondent No. 1. Though Mr. RK Milan and Mr. RK Maichael, learned counsel,

entered appearance for substituted petitioner No. 1 and appeared on earlier

occasions, they failed to appear during the hearing of this election petition and

the miscellaneous cases. Arguments were advanced by the other learned

counsel on 21.12.2021, 19.01.2022, 21.01.2022, 24.01.2022, 25.01.2022 and

27.01.2022, but on none of these dates did either Mr. RK Milan or Mr. RK

Maichael, learned counsel, choose to appear. This fact was noted by this Court

on the last date of hearing, viz., 27.01.2022, when the judgment was reserved.

[11] At this stage, it may be noted that on 27.04.2021, after the

substituted petitioners came on record, Mr. A. Mohendro, their learned counsel,

informed this Court that they would not be pressing Issue No. 2 framed on

08.08.2019, with regard to the alleged filing of a false affidavit by respondent

No. 1 as to his Government dues and, in particular, the land revenue payable in

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 8 respect of his landed property. This Court recorded the said submission and

deleted Issue No.2.

Thus, consideration in this election petition is now limited to the

other two issues, viz., Issues No. 1 and 3.

[12] Issue No. 1 relates to the alleged illegal acceptance of the

nomination of respondent No. 1. Mr. Ajoy Pebam, learned counsel, would

contend that respondent No.1 did not open a separate bank account for his

election expenditure before he filed his nomination, as directed by the Election

Commission of India, and his nomination was liable to be rejected on that

ground. He would place reliance on Ex. P-2 in this regard. Ex. P-2 is the

communication dated 15.10.2013 of the Election Commission of India,

addressed to the Chief Electoral Officers of all the States and UTs. This

communication dealt with opening of separate bank accounts by candidates for

their election expenditure. The relevant portion thereof reads as under:

'i) In order to facilitate monitoring of election expenditure, each candidate is required to open a separate bank account exclusively for the purpose of election expenditure. This account can be opened any time only for the purpose of election, not later than one day before the date on which the candidate files his nomination papers. The Account Number of this bank account shall be communicated by the candidate in writing to the Returning Officer (RO) of the constituency at the time of filing of his nomination.

Wherever the candidate has not opened the bank account or not intimated the bank account number, the RO shall issue a notice to each such candidate to comply with the Commission's instructions'

[13] Mr. Ajoy Pebam, learned counsel, would also rely on Ex. P-17

communication dated 03.01.2017 of the Election Commission of India to the

Chief Electoral Officers of various States, including the State of Manipur,

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 9 wherein a Checklist was provided for the candidates for elections to the

Legislative Assemblies of those States. This is one of the documents objected

to by respondent No.1. By way of Clause 1 in the Checklist, the Election

Commission required a candidate to open a bank account, exclusively for

election expenditure purposes, at least one day before filing of the nomination.

[14] It is an admitted fact that respondent No. 1 filed his nomination on

13.02.2017 but opened a separate bank account for his election expenditure

only on 16.02.2017. In effect, there was clear delay on his part in doing so, in

terms of the Checklist requirement. The question that arises is as to what would

be the impact and consequence of such belated opening of the bank account by

him. Going by Ex. P-2 communication dated 15.10.2013, such delay would not

be fatal as all that is to be done, in the event a candidate does not open a bank

account, is for the Returning Officer to issue a notice to such candidate requiring

him to comply with the Commission's instructions. However, the Checklist,

communicated to the candidates under Ex. P-17 dated 03.01.2017, if it is to be

considered at all, categorically required them to open such a bank account at

least one day before the filing of the nomination.

[15] Mr. Ajoy Pebam, learned counsel, would contend that the

aforestated instructions of the Election Commission are mandatory and that the

failure on the part of respondent No. 1 to open a bank account at least one day

prior to filing of his nomination on 13.02.2017 would be fatal. The status of such

instructions shall be considered hereinafter but, notwithstanding such status, the

ambiguity in the instructions is sufficient to reject such an argument. The

direction to the candidates in this regard in the Checklist may have been in clear

terms, if it is taken into account, but Ex. P-2 dated 15.10.2013 also made it clear

that failure to abide thereby is not fatal.

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 10 [16] All the more so, as Section 77(1) of the Act of 1951 specifically

states that a candidate at an election has to keep a separate and correct account

of all expenditure in connection with the election 'between the date on which he

has been nominated' and the date of declaration of the result thereof. The

responsibility to maintain the bank account plainly commences from 'the date on

which the candidate has been nominated'. Therefore, opening of the bank

account would also be linked thereto. The meaning of this phrase would have to

be construed logically as there is no definition in the Act of 1951 as to when a

candidate can be said to have been nominated.

[17] Significantly, Section 79(b) of the Act of 1951 also defines

'candidate' to mean a person who has been or claims to have been duly

'nominated as a candidate at any election'. In this regard, it may be noted that

Section 36 of the Act of 1951 deals with scrutiny of nominations and Section

36(8) states that, immediately after all the nomination papers have been

scrutinized and decisions accepting or rejecting the same have been recorded,

the Returning Officer shall prepare a list of validly nominated candidates, that is

to say, candidates whose nominations have been found valid, and affix it to his

notice board. Thereafter, Section 38, dealing with publication of the list of

contesting candidates, provides under sub-section (1) thereof that, immediately

after the expiry of the period within which candidature may be withdrawn, the

Returning Officer shall prepare and publish a list of contesting candidates, that

is to say, candidates who were included in the list of validly nominated

candidates and who have not withdrawn their candidature within the said period.

[18] In this context, it may also be noted that merely because a political

party nominates its candidate by giving him a ticket, he cannot be said to 'have

been nominated for the election'. Such an interpretation would not hold good in

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 11 the case of an independent candidate as he would not be nominated by a

political party and would decide on his own to contest the election. Trite to state,

a candidate who has submitted his nomination can also withdraw the same

before the stipulated date. Further, it is open to the Returning Officer to reject a

nomination submitted by a candidate, if it is found to be wanting in any respect.

Therefore, the date of filing of the nomination itself cannot be construed to be

'the date on which he is nominated'.

[19] In effect, given the statutory scheme and applying simple logic, the

only rational meaning that can be given to the phrase is to construe it to mean

the date on which the nomination submitted by the candidate is accepted as

valid and he does not withdraw his candidature before the date stipulated. Thus,

'the date on which a candidate has been nominated' would be the date on which

his nomination has been accepted as valid and his name is included in the list

of validly nominated candidates, who have not withdrawn their candidature

within the prescribed period, i.e., the list of contesting candidates.

[20] As regards the status of the instructions of the Election

Commission, it cannot be disputed that the Commission has power to fill in the

gaps, if any, in the statute or the rules framed thereunder, by issuing instructions.

In Mohinder Singh Gill and another vs. The Chief Election

Commissioner, New Delhi, and others [(1978) 1 SCC 405], the Supreme

Court affirmed this and observed that the Election Commission would be entitled

to exercise powers under Article 324 of the Constitution in an area not covered

by the Act of 1951 and the Rules.

However, such instructions cannot override or contradict the

statutory provisions. It is well settled that executive instructions issued by an

authority would be subject to the relevant statute and cannot override it.

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 12 In Lakshmi Charan Sen and others vs. A.K.M. Hassan

Uzzaman and others [(1985) 4 SCC 689], the Supreme Court considered

whether directions given by the Election Commission to the Chief Electoral

Officers have the force of law under the Act of 1951 and held that such

directions, though binding upon the Chief Electoral Officers, cannot be treated

as if they are law and that violation of the same would not result in the

invalidation of the election.

That being so, even if it is construed that instructions were issued

by the Election Commission to the effect that opening of the bank account by

the candidate must be at least one day prior to the filing of the nomination, the

same would have to give way to the mandate of Section 77(1) of the Act of 1951,

which requires him to maintain the account of election expenditure only from the

date on which he has been nominated. In consequence, he would have to open

his bank account only by the date that he can be considered a 'nominated

candidate'. Therefore, the failure of respondent No. 1 to open a bank account

before he filed his nomination on 13.02.2017 does not in any manner affect his

nomination, which was otherwise found to be in order and was accepted as a

valid nomination, and he was included in the list of contesting candidates.

Issue No. 1 is therefore answered against the petitioners and in

favour of respondent No. 1.

[21] As regards Issue No. 3, it may be noted that this issue was framed

on 08.08.2019, by which date the pleadings were complete, i.e, the Replication

as well as the Surrejoinder were already on record. By way of his Replication,

the original petitioner sought to enlarge the scope of enquiry by filing various

documents relating to the alleged election expenditure of respondent No. 1 after

the filing of his nomination and during the course of electioneering. In spite of

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 13 the same, Issue No.3, as framed, merely speaks of whether respondent No. 1

gave a false statement in his affidavit filed in respect of election expenses and

in particular, the expenditure for the period from 13.02.2017 to 15.02.2017.

Therefore, no specific issue was framed as regards the expenditure allegedly

incurred by respondent No. 1 after the filing of his nomination, as borne out by

the new documents filed along with the Replication. It is these very documents

that respondent No. 1 wants eschewed from consideration by way of his

application in MC (EP) No. 26 of 2021. Be it noted that the documents filed along

with the Replication were all photocopies. They were not even certified copies.

No separate application was filed at that time to allow the original petitioner to

adduce secondary evidence under Section 65 of the Indian Evidence Act, 1872.

[22] Mr. Ajoy Pebam, learned counsel, would contend that no objection

was raised to the filing of the Replication at that point of time and, therefore, the

documents filed therewith cannot now be questioned. However, the mere fact

that no objection was raised to the filing of the Replication does not mean that

the documents filed therewith were accepted straightaway by the other side or

by this Court. Significantly, respondent No. 1 raised this issue in his Surrejoinder

and he thereafter raised objections when these documents were marked in

evidence, pointing out that the same were sought to be introduced without

following the due procedure laid down by law. Reliance placed by Mr. Ajoy

Pebam, learned counsel, on Smt. Naseem Bano vs. State of U.P. and others

[1993 Supp. (4) SCC 46] is of no avail as it related to the doctrine of non traverse

in the context of a writ petition and not an election petition.

[23] In the light of the decision of the Supreme Court in Dhanpat vs.

Sheo Ram (deceased) through LRs [(2020) 16 SCC 209], it may not have

been necessary for the original petitioner to file a separate application for leading

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 14 secondary evidence but it was incumbent upon him to lay the foundation for

adducing secondary evidence by stating the grounds therefor. In Dhanpat

(supra), the Supreme Court held that there is no requirement that an application

be filed in terms of Section 65 of the Indian Evidence Act, 1872, before

secondary evidence is laid and it would be open to a party to either file an

application or to lay foundation for leading of secondary evidence either in the

plaint or in the evidence. However, neither in the Replication nor during the

course of the trial was any foundation laid by the original petitioner as to why

secondary evidence has to be allowed in this case.

Further, in Jeet Mohinder Singh vs. Harminder Singh Jassi

[(1999) 9 SCC 386], the Supreme Court held that Section 83 of the Act of 1951

requires every election petition to contain a concise statement of the material

facts on which the petitioner relies and in the event the election petition alleges

commission of corrupt practice at the election, the election petition shall set forth

full particulars of any corrupt practice, including as full a statement as possible

of the names of the parties alleged to have committed such corrupt practice and

the date and place of the commission of each such practice. As material facts

and particulars as to commission of corrupt practices are required to be given in

the Election Petition, the Supreme Court further held that the material facts and

particulars alleged for the first time in the Replication and not forming part of the

averments made in the Election Petition cannot be tried and cannot be made

the subject matter of the issues framed by the Court. This decision therefore

settles the issue squarely against the petitioners.

The documents are therefore liable to be rejected, despite being

marked as exhibits during the course of the trial. MC (EP) No.26 of 2021

therefore deserves to be allowed.

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 15 [24] As already noted supra, a lengthy trial was held wherein both sides

examined witnesses and marked documents in evidence. Official witnesses

were also examined and four documents were marked through them. The

application in MC (EP) No. 1 of 2022 filed by substituted petitioner No. 2 to call

another official witness for marking more documents shall be dealt with

hereinafter but it would suffice at this stage to note that consideration of the oral

and documentary evidence in this case is not even necessary in the context of

Issue No.3 in the light of certain crucial factors.

[25] It was the specific case of the original petitioner that the failure of

respondent No. 1 to maintain a true and proper account of his election expenses

from the date of filing of his nomination till the date of declaration of the result

violated the provisions of Section 77 of the Act of 1951 and such violation was

'nothing but a corrupt practice'. Notably, Clause 21 of the Checklist provided

under Ex. P-17 dated 03.01.2017 required that the candidate/agent make

entries of all election expenses at appropriate places in the Cash Register, Bank

Register and Day-to-Day Account Register from the 'date of filing of the

nomination' by the candidate till the date of declaration of results. This document

is to be rejected but even if this instruction is to be considered, it was contrary

to Section 77(1) of the Act of 1951 which requires an account of election

expenditure to be maintained only from the date on which the candidate has

been nominated. Therefore, the instruction cannot prevail over the statutory

mandate. The responsibility to maintain a true and proper account of the election

expenditure commences with the date that the candidate has been nominated

and ends with the date of declaration of the election result, both dates included.

[26] In this regard, it may be noted that Section 100 of the Act of 1951

details the grounds on which an election can be declared void. For the purpose

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 16 of this election petition, Section 100(1)(b) and Section 100(1)(d)(i) are relevant.

Section 100(1)(b) relates to any corrupt practice committed by a returned

candidate or his election agent or by any other person with the consent of a

returned candidate or his election agent. Section 100(1)(d)(i) relates to improper

acceptance of a nomination, the subject matter of Issue No.1, which has already

been dealt with hereinabove.

[27] Chapter II of Part VI of the Act of 1951, titled 'Disputes regarding

Elections', deals with presentation of election petitions to the High Court and

comprises Sections 80 to 85. Section 83 therein is titled 'Contents of Petition'

and states that an election petition shall contain a concise statement of the

material facts on which the petitioner relies and he shall set forth full particulars

of any corrupt practice that he alleges, including as full a statement as possible

of the names of the parties alleged to have committed such corrupt practice and

the date and place of the commission of each such practice, and the same shall

be signed by the petitioner and verified in the manner laid down in the Code of

Civil Procedure, 1908, for the purpose of pleadings. The proviso to Section 83(1)

states that when the petitioner alleges any corrupt practice, the petition shall

also be accompanied by an affidavit in the prescribed form in support of the

allegation of such corrupt practice and the particulars thereof. In this regard,

reference may also be made to Rule 94A of the Conduct of Election Rules, 1961.

Rule 94A provides that the affidavit referred to in the proviso to Section 83(1)

shall be sworn before a Magistrate of First Class or Notary or Commissioner of

Oaths and shall be in Form 25 appended to the said rules.

[28] Mr. Ajoy Pebam, learned counsel, fairly concedes that an affidavit

in Form No. 25, sworn before a Magistrate of First Class or a Commissioner of

Oaths, has not been filed in the case on hand though a specific allegation was

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 17 made by the original petitioner that respondent No. 1 had committed a 'corrupt

practice' in maintaining the account of his election expenditure. Trite to state, an

election petition has to be filed in strict conformity with the procedure prescribed

under the Act and Rules. An allegation made in the election petition in violation

of such prescribed procedure cannot be considered on merits.

[29] In Jeet Mohinder Singh (supra), the Supreme Court observed

that a charge of corrupt practice is quasi-criminal in character and may entail

extinction of a person's public life and political career and, therefore, the

allegations relating to commission of a corrupt practice should be sufficiently

clear and stated precisely so as to afford the person charged a full opportunity

of meeting the same. Per the Supreme Court, to prove the charge of corrupt

practice, mere preponderance of probabilities would not be enough and the

charge has to be proved to the hilt, the standard of proof being the same as in a

criminal trial. The Supreme Court also observed that when such allegations are

made by way of a Replication, they would not be supported by an affidavit in the

proforma provided under Rule 94A of the Conduct of Election Rules, 1961, which

would amount to breach of the prescribed procedure.

[30] That apart, there is another crucial factor which needs to be taken

into account. The sum and substance of the case of the original petitioner in this

election petition was only that respondent No. 1 had failed to maintain a true and

proper account of his election expenditure and more particularly, between the

dates 13.02.2017 and 15.02.2017, as he had opened a bank account for that

purpose only on 16.02.2017. Even the enlarged attack of the original petitioner,

by way of his Replication, was that respondent No. 1 failed to account for some

of his election expenditure and did not route the same through his bank account.

No allegation whatsoever was made to the effect that respondent No. 1 had

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 18 spent more than the prescribed maximum amount, in terms of Section 77(3) of

the Act of 1951. Despite the same, the original petitioner contended that

respondent No.1 had committed a corrupt practice.

[31] Section 123 of the Act of 1951 deals with 'Corrupt practices'.

Section 123(6) states that the incurring or authorization of expenditure in

contravention of Section 77 would be deemed to be a 'corrupt practice' for the

purposes of the Act of 1951. Section 77(1) of the Act merely requires a candidate

at an election, either by himself or by his election agent, to keep a separate and

correct account of all expenditure in connection with the election between the

date on which he has been nominated and the date of declaration of the result

thereof. Section 77(2) provides that the account should contain such particulars

as may be prescribed. Section 77(3) mandates that the total of the said

expenditure shall not exceed such amount as may be prescribed.

[32] In the case on hand, it was never the case of the original petitioner

that respondent No. 1's election expenditure exceeded the maximum amount

prescribed. His only allegation was that respondent No.1 had failed to maintain

a proper account of his election expenditure and no more. The question that

arises is whether the failure on the part of respondent No. 1 to maintain a true

and proper account of his election expenses and failure to route it through his

bank account, even if proved, would by itself be sufficient to constitute a 'corrupt

practice'. This issue is no longer res integra. The Supreme Court has already

considered this issue and the legal position in this regard stands crystallized.

[33] In L.R. Shivaramagowda and others vs. T.M. Chandrashekar

(Dead) by LRs and others [(1999) 1 SCC 666], the Supreme Court observed

that what is referred to in Section 123(6) as a corrupt practice is only incurring

or authorizing of excess expenditure in contravention of Section 77 thereof.

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 19 Section 123(6), per the Supreme Court, does not take into its fold the failure to

maintain true and correct accounts and its language is clear that the corrupt

practice defined therein can relate only to Section 77(3), i.e., incurring or

authorizing of expenditure in excess of the amount prescribed. The Supreme

Court further held that it cannot, by any stretch of imagination, be said that

non-compliance with Sections 77(1) and (2) would also fall within the scope of

Section 123(6) and consequently, such non-compliance cannot fall under

Section 100(1)(b). The Supreme Court pointed out that failure on the part of the

returned candidate to maintain an account as required by Sections 77(1) and (2)

would in no case affect, and much less materially, the result of the election.

[34] In the light of the law laid down in L.R. Shivaramagowda (supra),

it is clear that even if the original petitioner's allegation that respondent No.1

failed to maintain a proper account is accepted, it would not constitute a 'corrupt

practice' under Section 123(6) of the Act of 1951. The decision in Ashok

Shankarrao Chavan vs. Madhavrao Kinhalkar and others [(2014) 7 SCC 99]

is distinguishable on facts as there is no allegation in the case on hand that

respondent No.1 incurred election expenditure in excess of the prescribed

maximum amount. The said decision therefore has no relevance presently.

In effect, Issue No. 3 is of no import as it would not constitute a

'corrupt practice' under Section 100(1)(b) of the Act of 1951 in any event.

Further, the original petitioner failed to abide by the procedure prescribed when

he chose to level the allegation that respondent No.1 had committed a corrupt

practice. In consequence, the same cannot even be tried.

The issue is answered accordingly.

[35] In so far as MC (EP) No. 1 of 2022 is concerned, it may be noted

that Arthur Worchuiyo, the then District Election Officer, Imphal West, was

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 20 examined as Official Witness No. 1 but he failed to produce documents. At that

stage, upon being informed that Arthur Worchuiyo had stated that he could not

bring the relevant records as regards the election expenditure of respondent No.

1, this Court passed an order on 15.12.2020 directing certain records to be

produced by the District Election Officer, Imphal West, through a person deputed

by him. Arthur Worchuiyo was directed to appear again before the

Commissioner on the date fixed by him. In spite of this order, Arthur Worchuiyo

did not appear before the Commissioner and only one H. Jadumani Singh,

Election Officer, Imphal West, was present on 12.01.2021 along with the

requisitioned documents. The Report dated 14.01.2021 of the Commissioner

reflects that the original documents produced by H.Jadumani Singh were

returned to him after obtaining certified copies thereof for ready reference. The

original depositions of both the official witnesses and the certified copies of the

documents requisitioned by this Court were forwarded by the Commissioner

thereunder. The earlier Report dated 14.12.2020 of the Commissioner reflects

that examination of Arthur Worchuiyo was not even completed due to non-

production of the original documents and the partly recorded deposition of this

official witness was forwarded to this Court.

[36] In effect, no steps were taken by the original petitioner to examine

the official witness at that point of time for marking of the requisitioned

documents that were produced by H. Jadumanai Singh, Election Officer, Imphal

West. In any event, these documents also have no impact or bearing on the

result of this election petition as they are relevant, if at all, in the context of the

allegation that respondent No. 1 failed to maintain a true and proper account of

his election expenditure. As already noted supra, even if there was any such

failure on the part of respondent No. 1, it would not amount to a 'corrupt practice'

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 21 under Section 123(6) read with Section 77(3) of the Act of 1951. That being so,

there is no purpose served in accepting the plea of substituted petitioner No. 2

to reopen the trial and call an official witness for marking these documents at

this late stage. Further, this plea is highly belated and would be hit by the

doctrine of laches as no steps were taken by the substituted petitioners to rectify

the lapses in this regard prior to conclusion of the trial after their entry into the

arena. Reliance placed by Mr. Ajoy Pebam, learned counsel, on Mange Ram

vs. Brij Mohan and others [(1983) 4 SCC 36], and K.K. Velusamy vs. N.

Palaanisamy [(2011) 11 SCC 275], is therefore of no avail. MC (EP) No. 1 of

2022 is therefore liable to be dismissed.

[37] On the above analysis, Issue No.1 is answered against the

petitioners and in favour of respondent No.1. Issue No.3 is of no import or

consequence, firstly, for failure on the part of the original petitioner to abide by

the prescribed procedure and secondly, as it would not amount to a corrupt

practice under Section 123(6) read with Section 77(3) of the Act of 1951 for the

purposes of Section 100(1)(b) thereof, even if answered in favour of the

petitioners.

In the result, the election petition stands dismissed.

MC (EP) No.26 of 2021 is allowed.

MC (EP) No.1 of 2022 is dismissed.

In the circumstances, there shall be no order as to costs.

CHIEF JUSTICE FR Sandeep

E.P. No. 11 of 2017 & MC (EP) Nos. 26 of 2021 & 1 of 2022. Page 22