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Gauhati High Court sets aside Death Penalty and upholds Rigorous Life Imprisonment for rape and murder case

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Case title:  JASHIM UDDIN BARBHUIYA Vs THE STATE OF ASSAM AND  ANR

Case no.:  Crl.A./389/2018

Dated on: 19.04.2024

Quorum:  Hon’ble. MR JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

 

FACTS OF THE CASE

On 14.03.2018, Madhuchandra Riyang lodged an FIR before the Officer in Charge of Ramnathpur Police Station, inter-alia, alleging that on this said day, i.e., 14.03.2018, his neighbour, Brojendra Riyang and the first informant were doing house repairing work and his two nieces, namely, Vishnupriya Riyang and Debarung Riyang, returned to their house and noticed another niece “X”(real name not disclosed, to protect the identity of the victim, the victim shall hereinafter be referred to as “X” in this judgment) was found lying dead with a cut on her neck and on seeing this they raised hue and cry. The first informant along with his companion Brajendra Riyang rushed to the place of occurrence and found his niece “X” lying dead with a cut on her neck. It is stated in the FIR that the elder brother of the first informant had gone to harvest Jhum (shifting cultivation), and after calling him home, the police was informed about the matter over the telephone. It is also stated in the FIR that the first informant noticed the accused Jashim Uddin Barbhuiya, running away with a blood-stained dao in his hand and therefore he believes that the accused Jashim Uddin Barbhuiya, finding the niece of the informant namely, “X” alone in the house, committed rape on her and in order to conceal evidence, he killed her by cutting her neck.

The Criminal Appeal No. 389/2018 has been registered on filing of an appeal under Section 374 of the Code of Criminal Procedure, 1973 by the appellant, Jashim Uddin Barbhuiya, impugning the judgment dated 1.10.2018 passed by the learned Sessions Judge, Hailakandi in Sessions (T-1) Case No. 60/2018. appellant has been convicted under Sections 376/302 of the Indian Penal Code as well as under Section 4 of the POCSO Act, 2012. the appellant has been sentenced to imprisonment for life for the offence of committing rape/penetrative sexual assault and to pay a fine of Rs. 10,000/- under Section 376 of the Indian Penal Code, read with Section 4 of the POCSO Act, 2012, in default of payment of fine to undergo rigorous imprisonment for 3 months. The appellant has also been sentenced to death for committing the offence of murder under Section 302 of the Indian Penal Code, and was also sentenced to pay a fine of Rs. 10,000/ under Section 302 of the Indian Penal Code, in default of payment of fine to undergo rigorous imprisonment for 3 months.

ISSUES

  • Whether the accused person, on 14.03.2018 at about 1:00 PM, at village-Betcherra under Ramnathpur Police Station committed rape on the victim ‘X’, niece of the informant Madhu Chandra Riang and thereby committed an offence punishable under Section 376 of the I.P.C.?
  • Whether the accused person, on 14.03.2018 at about 1:00 PM, at village-Betcherra under Ramnathpur Police Station committed rape on the victim ‘X’, niece of the informant Madhu Chandra Riang and thereby committed an offence punishable under Section 376 of the I.P.C.?
  • Whether the accused person, on the aforesaid date, time and place, committed penetrative sexual assault upon the victim ‘X’, a minor girl and thereby committed an offence punishable under Section 4 of the POCSO Act, 2012?

LEGAL PROVISIONS

Section 376 of The Indian Penal Code, 1860

Section 376 of the Indian Penal Code (IPC) deals with the punishment for the crime of rape. The section prescribes imprisonment for a term not less than seven years, which may extend to life imprisonment, and also includes a fine.In cases involving aggravated rape, such as when the victim is a minor, the punishment is more severe, including rigorous imprisonment for a term not less than ten years, which may extend to life imprisonment, and also includes a fine.

Section 4 of the POCSO Act, 2012

Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, deals with the punishment for penetrative sexual assault on a child. Whoever commits penetrative sexual assault shall be punished with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

In cases where the penetrative sexual assault results in the child becoming pregnant, contracting a sexually transmitted disease, or suffering from mental illness, or the assault results in the death of the child or causes the child to become mentally or physically incapacitated, the punishment can be imprisonment for the rest of the natural life of the person and shall also be liable to fine.

Section 302 of The Indian Penal Code, 1860

Section 302 of the Indian Penal Code (IPC) pertains to the punishment for murder being death sentence or life imprisonment, along with a fine.It applies to individuals who commit murder, which is defined under Section 300 of the IPC.

CONTENTIONS OF THE APPELLANT

The appellant denied the truthfulness of the incriminating evidence adduced against him by the prosecution side and pleaded his innocence. He also stated that he has been falsely implicated in this case out of grudge due to a land dispute between the informant side and the present appellant, however, the appellant declined to adduce any evidence in his defence.

Mr. A. I. Uddin, learned counsel for the appellant has submitted that the prosecution side has failed to prove its case beyond all reasonable doubt. He has submitted that the prosecution case is full of doubt and conviction cannot be sustained on the basis of insufficient evidence which is available on record. The learned counsel for the appellant has also submitted that the prosecution case is based entirely on circumstantial evidence and there are several missing links in the chain of circumstances which do not lead to the only inference that the appellant is guilty of the offence with which he is charged. He has submitted that the circumstances do not point towards the guilt of the appellant only and there are gaps in between the circumstances and the appellant is to be given benefits of such gaps or doubt which the prosecution side has not been able to fill up by adducing credible evidence. Learned counsel for the appellant has submitted that though the appellant has also been convicted under Section 4 of the POCSO Act, 2012, which deals with penetrative sexual assault, however there is no evidence of any penetration by the present appellant and other ingredients of Section 4 of the POCSO Act, 2012, as well as Section 376 of the Indian Penal Code. It is submitted by the learned counsel for the appellant that merely finding stains of semen on the panty of the deceased in the forensic examination would not implicate the present appellant unless the semen found on the panty of the deceased is cross-matched with the semen of the present appellant so as to ascertain that as to whether the semen found on the panties of the deceased were of the present appellant or not. Further, it is submitted by the learned counsel for the appellant that no evidence of recent sexual assault was found on the dead body of the deceased and no spermatozoa were found inside the vagina of the deceased on medical examination which only leads to the inference that she was not subject to penetrative sexual assault before her death.

CONTENTIONS OF THE RESPONDENTS

Ms. S. Jahan, learned Additional Public Prosecutor has submitted that in this case, the circumstances from which the conclusion of guilt of the present appellant has been drawn are fully established and from the proved circumstances, no other hypothesis except the guilt of the accused is established in this case. She has submitted that from the evidence of PW-4, who is the father of the victim, as well as PW-8, who is the sister of the victim, it becomes clear that when the alleged offence occurred, the victim was alone in her house and the appellant took advantage of that and committed the gruesome act against the helpless victim. She also submitted that the conduct of the appellant prior to the occurrence of the incident is also relevant, as from the testimony of PW-6, i.e., Shri Dilip Kumar Riyang, it appears that the appellant had come in his house before the incident with a dao in his hand and had asked about the parents of the victim. It is also submitted by the learned Additional Public Prosecutor that the Executive Magistrate who conducted the inquest on the dead body of the victim also found the lower part of vagina of the victim swollen and open with scratch marks and bruises on her back and also found the neck of the victim half cut. Learned Additional Public Prosecutor also submitted that the evidence of PW-17, i.e., the doctor who conducted the post mortem examination of the dead body of the victim girl clearly shows that the death of the victim was homicidal as he also opined that the injury on the neck could have been inflicted by the dao that was recovered.

COURT’S ANALYSIS AND JUDGEMENT

The court considered as to whether the trial court was right in convicting the appellant under Section 376 of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012 and whether sufficient materials are there on record to arrive at such a conclusion. The court held that there is no eyewitness to the alleged offence who could have adduced direct evidence, hence, the prosecution’s case is based on circumstantial evidence only. However, in the instant case, there appears to be no circumstantial evidence on record to conclusively prove the existence of any of the four ingredients required to for Section 4 of POCSO and 376 of IPC. PW-18 who is the doctor who conducted the post-mortem examination of the dead body of deceased ‘X’ has deposed that during post-mortem examination the external labia majora were found to be swollen and the vagina was found to be wide open. However, he has opined that there is no evidence of recent sexual intercourse as there was absence of any spermatozoa or any injury in and around the vagina. The trial court while discussing this evidence has concluded that from the swollen labia majora it is presumed that something came into forceful contact with the private parts of the deceased and contrary to the opinion of the doctors, who conducted the post-mortem examination of the dead body of the victim “X”, the trial court had presumed that the victim was raped before she was killed, only due to the swelling of the labia majora of the deceased “X”. The most important circumstance in the chain of circumstances which have been established by the prosecution witnesses is the recovery of dao from the house of the appellant which was kept beneath a table and the said recovery was made on the basis of the information given by the appellant in his statement.

Thus, in view of the discussions made and reasons stated in foregoing paragraphs, the conviction of the appellant under Section 376 of the Indian Penal Code, as well as under Section 4 of the POCSO Act, 2012 were set aside. However, the conviction of the present appellant under Section 302 of the Indian Penal Code for committing murder of the deceased ‘X’ was upheld.

In view of the above discussion, the court did not think that any of the factors in the present case discussed above warrants the award of the death penalty. There were no special reasons to impose the death penalty and the mitigating factors in the present case, in its opinion, were sufficient to place it out of the “rarest of rare” category and for the reasons aforementioned, the court was of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, was sentenced to undergo rigorous imprisonment for life.

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Judgement Reviewed by – Fathima Sara Sulaiman

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Gauhati High court uphelds Legal Dispute Over Bank Employee Termination due to lack of Continuous Employment

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Case Name: Binoy Kumar Sinha v. The State Bank of India and 4 Ors.

Case Number: WP(C)/1331/2014

Date of Judgment: 26.04.2024

Quorum of the Case: The case was presided over by Hon’ble Mr. Justice Michael Zothankhuma.

FACTS OF THE CASE

Binoy Kumar Sinha, the petitioner, served as a sweeper in the Dinjan Branch of the State Bank of India (SBI) and challenged the termination of his service dated 16.09.2008. The termination was upheld by the Industrial Tribunal through an award dated 30.09.2013, which answered against the petitioner, stating he was a daily wage worker and not a workman. The petitioner claims to have been verbally appointed as a sweeper on 29.03.2004 and received Rs. 50/- per day, later increased to Rs. 60/- per day. He was also paid Rs. 30/- per day for cleaning the ATM, along with allowances for other tasks. The petitioner argues that his termination violated Section 25-F of the Industrial Disputes Act, 1947, as he was a daily wage worker and should be considered a workman. The reference brought to the Labour Court questioned the legality and justification of the petitioner’s termination and sought relief for him. The Industrial Tribunal’s award was based on the petitioner’s failure to prove continuous employment for 240 days preceding his termination and his status as a daily wage worker rather than a workman. The petitioner’s counsel cites precedents where daily wage workers were regularised, emphasising the petitioner’s four years of service and reliance on Supreme Court judgments. The respondent’s counsel argues against regularisation, citing absence of a scheme for it and the need for compliance with constitutional recruitment procedures. The judgement cites various Supreme Court cases related to the regularisation of temporary workers and emphasises compliance with constitutional provisions regarding appointments. Ultimately, the court dismisses the writ petition, affirming the Industrial Tribunal’s decision and finding no grounds to interfere with it.

ISSUES

  • whether Binoy Kumar Sinha’s termination from his role as a sweeper at the State Bank of India’s Dinjan Branch on 16.09.2008 was legally justified.
  • whether Sinha should be classified as a workman or a daily wage worker, as this classification affects his entitlements and protections under relevant labour laws.
  • whether the termination adhered to the procedural requirements outlined in labour legislation, particularly regarding notice and compensation in accordance with Section 25-F of the Industrial Disputes Act, 1947.

LEGAL PROVISIONS

  • Section 25-F of the Industrial Disputes Act, 1947: This section lays down the conditions that must be met for the retrenchment of workmen. It mandates, among other things, the provision of notice or payment in lieu of notice and the payment of retrenchment compensation to eligible employees.
  • Constitutional Provisions: The case refers to Articles 14 and 16 of the Constitution of India. Article 14 ensures equality before the law, and Article 16 guarantees equality of opportunity in matters of public employment. These provisions are cited to emphasise the importance of adherence to fair and transparent recruitment processes.

CONTENTIONS OF THE APPELLANT

The appellant’s counsel submits that the appellant was orally appointed as a Sweeper on March 29, 2004, and delineates the compensation and duties during his tenure at the State Bank of India’s Dinjan Branch. The progression of his salary, from Rs. 50/- to Rs. 60/- per day, and the additional allowances for specific tasks like ATM and premises cleaning, are highlighted. The appellant’s counsel contends that the appellant’s termination as a daily wager worker breaches Section 25-F of the Industrial Disputes Act, 1947. This assertion rests on the argument that the appellant’s status qualifies him as a workman, thereby entitling him to certain legal protections.  The appellant’s counsel underscores that the reference presented to the Central Government Tribunal seeks clarification on the legality and justification of the appellant’s termination. By framing the reference in this manner, the appellant’s counsel aims to underscore the importance of resolving the issue through legal channels. These contentions provide a structured argument, asserting the appellant’s position regarding the termination and its legal ramifications. They are designed to persuade the court to rule favourably on behalf of the appellant.

CONTENTIONS OF THE RESPONDENT

 The respondent’s counsel argues that the appellant was never formally appointed as a workman against any permanent vacancy, nor was there any advertisement or selection process conducted. Instead, the appellant was engaged sporadically as a daily wage worker for various manual tasks at the bank. The respondent’s counsel contends that there is no scheme in place for the regularisation of the appellant’s employment. As a daily wage worker, there is no basis for regularising his service or extending it beyond the period required by the bank. The respondent’s counsel references legal precedents and emphasises that the appellant’s case lacks the prerequisites for regularisation or continuation of service. The absence of formal appointment procedures and the sporadic nature of the appellant’s engagement are highlighted as key factors in this argument. These contentions collectively constitute the respondent’s position regarding the appellant’s termination and the legal implications thereof. They aim to justify the bank’s actions and refute the appellant’s claims of wrongful termination and entitlement to certain benefits.

COURT’S ANALYSIS AND JUDGEMENT

The court’s analysis begins by referencing relevant judgments and legal principles. It notes that the appellant failed to prove continuous employment for 240 days preceding his termination, a requirement under Section 25-F of the Industrial Disputes Act, 1947. Furthermore, it observes that the appellant’s engagement lacked procedural regularity, as there was no formal appointment process or advertisement conducted by the bank. Building upon its analysis, the court concludes that the appellant did not meet the criteria for regularisation or continuation of service. It emphasises the absence of procedural regularity in the appellant’s engagement and the failure to demonstrate continuous employment for the requisite period. As such, the court finds no violation of Section 25-F of the Industrial Disputes Act, 1947.

Based on its analysis and findings, the court dismisses the appellant’s writ petition. It concludes that there are no grounds to interfere with the Industrial Tribunal’s award, which upheld the termination of the appellant’s service. The court directs that the records be sent back accordingly, thereby bringing the case to a close. This judgement summarises the court’s assessment of the appellant’s claims, the legal principles involved, and the ultimate decision reached by the court.

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 Judgement Reviewed by – Shruti Gattani

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Gauhati Court Rules Driver’s Negligence Responsible for Accident: NFR Not Liable for Compensation in Unmanned Railway Crossing Case  

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Case title:  UNION OF INDIA & ANR VS PARTHIVJYOTI SAIKIA

Case no.:   Case No.: MACApp. /349/2013                       

Dated on:  28th May 2024

Quorum:  Hon’ble. MR Justice PARTHIVJYOTI SAIKIA

FACTS OF THE CASE

This is an appeal under Section 173 of the Motor Vehicles Act challenging the judgment and order dated 19.07.2013 passed by the Motor Accident Claims Tribunal, Tinsukia in MAC Case No.23/2010. On 13.11.2009 at about 6.18 P.M., late Bibhnu Bharali was travelling insides the driver’s cabin of the TATA Magic ACE Pick Up vehicle bearing Registration No.AS-23 AC-0846. The vehicle was driven by Lok Bahadur Chetri. The handyman Hori Sonar was also present inside the cabin along with the deceased and the driver. When the vehicle tried to cross one unmanned Railway crossing near Laipuli, a train coming from Lidu towards Dibrugarh had hit the aforesaid vehicle. The deceased sustained grievous injuries and succumbed to his injuries. Therefore, Smt. Rekha Bharali, the wife of the deceased, his two children and his parents filed a claim petition before the Tribunal seeking compensation. Shri Bharat Bharali and Shri Lok Bahadur Chetri, the owner and the driver of the vehicle bearing Registration No.AS-23-AC-0846, the Insurance Company of the said vehicle and the present appellant were arraigned as defendants in that case. In his written statement, Shri Bharat Bharali has claimed that his vehicle was insured with a valid Insurance Policy. He, therefore, claimed that the Insurance Company is liable to pay compensation. The driver Lok Bahadur Chetri has stated in his written statement that he did not notice the incoming train due to heavy fog. He further claimed that the train did not use its horn. The National Insurance Company Limited in its written statement has pleaded that since the vehicle bearing Registration No.AS-23-AC-0846 was a goods carrying commercial vehicle, it cannot carry passengers. The appellant Union of India has stated in his written statement that the incident took place because of carelessness and negligence of the driver of the vehicle bearing Registration No.AS-23-AC-0846. On the basis of the evidence on record, the Tribunal directed the National Insurance Company Limited to pay compensation of ₹4,03,550/- to the claimant along with interest @ 6% per annum. The Tribunal further directed the present appellant to pay an amount of ₹4,03,550/- to the claimant along with interest @ 6% per annum.

ISSUES

  • Whether Bibhnu Bharali @ Bishnu Bharali died on 13.11.2009 as a result of rash and negligent driving of TATA Magic ACE Pick Up vehicle bearing Registration No.AS-23-AC-0846?
  • Whether the claimants are entitled to get any compensation? if so, to what extent and from whom?
  • Whether the accident occurred as a result of negligent act of NF Railways?

LEGAL PROVISIONS

Motor Vehicles Act, 1988

Section 173: Appeals This section allows any person aggrieved by an award of a Claims Tribunal to appeal to the High Court. The appeal must be filed within 90 days from the date of the award.

Section 173 of the Motor Vehicles Act, 1988: Governs the appeal process.

Section 161 of the Railways Act, 1989: Establishes the duty of care required at unmanned level crossings and defines the negligence that contributed to the accident.

Railways Act, 1989

Section 161: Negligently crossing unmanned level crossing This section penalizes anyone who negligently crosses an unmanned level crossing. Punishment: Imprisonment which may extend to one year.

Negligence Defined: Crossing without stopping or caring to stop the vehicle to observe for any approaching train. Crossing even when an approaching train is in sight.

CONTENTIONS OF THE APPELLANT

Ms. Chakraborty has pointed out to Section 161 of the Railways Act, 1989, which states that if any person driving or leading a vehicle, is negligent in crossing an unmanned level crossing, he shall be punished with imprisonment which may extent to one year. At this stage, a brief visit to Section 161 of the Railways Act, would be fruitful, it reads as under: “161. Negligently crossing unmanned level crossing. — If any person driving or leading a vehicle is negligent in crossing an unmanned level crossing, he shall be punishable with imprisonment which may extend to one year. Explanation. —For the purposes of this section, “negligence” in relation to any person driving or leading a vehicle in crossing an unmanned level crossing means the crossing of such level crossing by such person— (a)without stopping or caring to stop the vehicle near such level crossing to observe whether any approaching rolling stock is in sight, or (b)even while an approaching rolling stock is in sight. According to Ms. Chakraborty, Lok Bahadur Chetri, the driver of the vehicle bearing Registration No.AS-23-AC-0846 never stopped or cared to stop the vehicle near the level crossing to observe whether any approaching train was in sight. The learned counsel further submitted that it is the fault of the driver for which the accident took place.

CONTENTIONS OF THE RESPONDENTS

No representation.

COURT’S ANALYSIS AND JUDGEMENT

 I have considered the submissions of Ms. Chakraborty. The driver Lok Bahadur Chetri has stated in his evidence that when he had reached the level crossing, the headlights of his vehicle were in switched on mode. He further stated that before crossing the Railway crossing, he did not stop the vehicle but he had looked towards Dibrugarh direction and his handyman had looked towards Lidu direction. When they found no train on the track, they proceeded towards the level crossing. The driver further stated in his evidence that just before him, an Army truck had crossed the Railway unmanned level crossing and he just followed that truck. Immediately, a train coming from Lidu direction had hit his vehicle. The driver has stated in his evidence that he never heard the sound of an incoming train nor he had heard the whistle of the train. In this case, except Lok Bahadur Chetri, there are no eye witnesses to the occurrence. Section 161 of the Railways Act, 1989, makes it compulsory for the drivers of every vehicle crossing an unmanned level crossing, to stop and to observe whether any train is coming, before crossing the level crossing. The driver Lok Bahadur Chetri has stated in his evidence that he did not stop his vehicle before crossing the level crossing. He has stated that though he did not stop before crossing the level crossing, he had looked for incoming train in the direction of Dibrugarh while his handyman had looked towards Tinsukia/Lidu direction. The driver further stated that when he and his handyman did not see any incoming train, he took the vehicle forward for crossing the level crossing. At this stage, I find it hard to believe that the driver did not hear the sound of a huge incoming train. Now, it is clear on the face of the record that the driver Lok Bahadur Chetri had violated the provision of law as laid down in Section 161 of the Railways Act, 1989. It is proved that the accident took place because of the negligence of Lok Bahadur Chetri who was driving the vehicle bearing Registration No.AS-23-AC-0846. In that case, the appellant NF Railways is not liable to pay any compensation to the claimant. For the aforesaid reasons, the appeal is allowed. The impugned judgment and order dated 19.07.2013 passed by the learned Motor Accident Claims Tribunal, Tinsukia in MAC Case No.23/2010 directing the appellant NF Railways to pay a compensation of ₹4,03,550/- to the claimant(s) along with interest @ 6% per annum, is set aside. The MAC Appeal is disposed of.

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Judgement Reviewed by – HARIRAGHAVA JP

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The Allegations of ‘Corrupt Practices’ must be established Beyond Reasonable Doubt to render a Election Void under Section 100 of RP Act: Supreme Court

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Case title: Karim Uddin Barbhuiya Vs Aminul Haque Laskar & Ors.

Case no.: Civil Appeal No. 6282 of 2023

Decision on: April 8th, 2024

Quoram: Justice Aniruddha Bose and Justice Bela M. Trivedi

Facts of the case

On March 5, 2021, General Election to the Legislative Assembly of Assam was notified by the Election Commission of India (ECI) and accordingly, the appellant Karim Uddin Barbhuiya filed his nomination papers as a candidate of All India United Democratic Front (AIUDF) along with the Declaration, by way of an affidavit in Form-26 of The Conduct of Election Rules, 1961. On April 1, the election for the Legislative Assembly Constituency no. 10, Sonai was concluded and the appellant secured 71,937 votes out of total votes polled, while the respondent Aminul Haque Laskar secured 52,283 votes in his favour.

On June 4, the respondent filed the Election Petition before the Gauhati High Court under Section 100(1)(b) and Section 100(1)(d)(i) of RP Act questioning the election of the appellant, mainly making four allegations – (a) false declaration of educational qualification of B.A. (b) suppression of the educational qualification of Diploma in Engineering (c) suppression of bank loan details of M/s. Allied Concern and (d) suppression of un-liquidated provident fund dues. The High Court issued notice in the said Election Petition. Subsequently, the appellant filed an application under Order VII Rule 11, CPC read with Section 86 of the RP Act for rejection of the Election Petition. However, the High Court through an impugned judgment dismissed the application filed by the appellant and hence, the same was contested before the Apex Court.

Submissions on behalf of the Appellants

The Counsel, Mr. Kapil Sibal appearing for the appellant vehemently submitted that the respondent has sought to upset the election results by filing the baseless, motivated and malafide election petition, based on mere bald allegations that the information disclosed in Form No. 26 was inaccurate. He submitted that the pleadings in Election petition are not the averments of material facts but are facts based speculations which do not disclose any triable issue. He further submitted that it neither discloses a complete cause of action, nor contain all the “material facts” as required under Section 83(1)(a). It also does not plead “full particulars” of the alleged corrupt practice of undue influence, as required under Section 81(1)(b) of the RP Act.

The Counsel submitted that the allegations and averments made in the Election Petition could not constitute “undue influence” much less “corrupt practices” as contemplated under Section 123, for declaring the Election to be void under Section 100 of the RP Act. He relied on the decision in case of Kanimozhi Karunanidhi Vs A. Santhana Kumar and Ors and prayed to dismiss the Election Petition at the threshold.

Submissions on behalf of the Respondents

The Counsel submitted that the election of the appellant is liable to be set aside firstly on the ground that the nomination paper was improperly accepted, as the affidavit contained false statements and secondly, on the ground that the appellant having indulged in corrupt practices, failed to make the disclosures as required by the RP Act. He submitted that if the “corrupt practice” is alleged under Section 100(1)(b), it is not necessary to state that the “corrupt practice” has materially affected the outcome of the election. Thus, he contended that the High Court was right in rejecting the application of the appellant under Order VII Rule 11, CPC.

Court’s Analysis and Judgement

The Court delved into the intricacies of relevant provisions of the RP Act. At the outset, it noted that as per the well settled legal position, right to contest election or to question the election by means of an Election Petition is neither common law nor fundamental right, but only a statutory right governed by the statutory provisions of the RP Act. It reiterated that in an Election Petition the pleadings have to be precise, specific and unambiguous, and if it fails to disclose a cause of action, it is liable to be dismissed. Thus, noted that the cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the RP Act.

The Bench considered the allegations made by the respondent and examined the submissions made by both the parties with reference to the legal provisions to ascertain the allegations. With regard to allegations on suppression and misrepresentation of facts it stated that the same did not fall within the definition of “Corrupt practice” of “undue influence” as envisaged in Section 123(2) of the RP Act.

It pointed out that a charge of “Corrupt practice” is easy to level but difficult to prove because it’s criminal charge nature and has to be proved beyond doubt. Accordingly, ruled that the standard of proof required for establishing a charge of “Corrupt practice” is the same as is applicable to a criminal charge. Thus, it asserted that the allegation of corrupt practice have to be precise, specific, and unambiguous, whether it is bribery or undue influence or other corrupt practices as stated in Section 123 of the Act. It said that if it is corrupt practice in the nature of undue influence, the pleadings must state the full particulars with regard to the direct or indirect interference or attempt to interfere by the candidate, with the free exercise of any electoral right as stated in Section 123(2) of the Act.

The Supreme Court in light of the above analysis held that if the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, then it is liable to be rejected under Order VII, Rule 11 of CPC. Therefore, it dismissed the Election Petition filed by the respondent before the High Court challenging the Assam Assembly Election of AIUDF leader.

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Judgement Reviewed by – Keerthi K

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