TaxTMI 
TaxTMI 
1994 (11) TMI 444
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....ess votes than the returned candidate. Since, the real contest was between the appellant and the returned candidate respondent No. 1 , and the challenge in the Election Petition is also limited, it is not necessary to notice the votes polled by or the party affiliations of the other respondents. The polling in the Constituency took place in 132 polling stations. The counting of ballot papers took place in the town of Hansi in PCSD High School, Dr. Avtar Singh, IAS, SDM, Hansi was the Returning Officer, who declared respondent No. 1 as duly elected. 3. The appellant filed an election petition under Section 81/83 of the Act calling in question the election of respondent No. 1. The challenge, in the election petition, was based mainly on the ground of commission of irregularities and illegalities during the counting. The appellant alleged that the Returning Officer was biased in favour of respondent No. 1 and that he had appointed various members of the counting staff of the choice of respondent No. 1 and those members improperly rejected the valid votes of the appellant and illegally inflated the number of votes polled by respondent No. 1 by accepting and counting invalid votes in....
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....rs issued under the Act. The appellant after the counting was over but before the result was declared, applied to the Returning Officer for a recount but his application was wrongly rejected. According to the appellants the result prepared by the Returning Officer was inaccurate and the irregularities committed during the counting of votes and preparing of Forms XVI and XX had materially effected the result of the election in so far as the returned candidate is concerned. The appellant prayed for the election of respondent No. 1 to be declared void and set aside. He prayed for a recount and for a declaration that he be declared as duly elected. 5. The respondent No. 1 contested the election petition and denied all the allegations made by the appellant. He also raised some preliminary objections to the maintainability of the election petition. It was stated that some of the allegations contained in the election petition were scandalous while others were vague and the same did not disclose any cause of action. It was also asserted that the allegations regarding the commission of illegalities or irregularities during counting were an after thought since during the counting no such ....
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....served: The evidence of the petitioner led in the Court that the counting agents could not participate in the counting is thus not credible. I also see force in the arguments of the learned Counsel for the respondent that the, silence of the petitioner and his counting agents at the time when other officers visited should be sufficient to silence their protest made now.... I. however, find that the record prepared with respect to the result has been overwritten in some of the forms XVI and also in form XX and the same raise some suspicion about the correctness of that record. Though, the fixing of the seat of the supervisor on the other end of the table will not be deemed to be a breach of the Rules but in the present case, it has acquired significance. According to the lay out given in Annexure XXV, the counting supervisor had to sit on one side of the table close to the side on which the counting agents are provided the sitting place. It was obviously for the purpose that the counting agents should be able to observe not only the actual counting process, but also the preparation of form XVI, or any other writing work done by the supervisor. The counting supervisors have bee....
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....the secrecy of the ballot papers. This Court on 26.3.1993, in presence of learned Counsel for the parties, dismissed the special leave petition. The inspection/ recount was, thereafter, carried out as directed and a report was submitted to the High Court on 31.3.1993, which inter alia recorded: BOOTH NO. 28 1. Vote No. 0025675 was actually marked in favour of Shri Azad Singh, but was found in the bundle of Shri Jaswant Singh. 2. Vote bearing No. 0025862 was actually marked in favour of Shri Karam Singh, but was found in the bundle of Shri Jaswant Singh. 3. Vote No. 0025536 had been polled in favour of Shri Virinder Singh, but was found in the bundle of Shri Karam Singh. 4. Vote No. 0025730 had been polled in favour of Shri Jaswant Singh, but was found in the bundle of Shri Karam Singh. 5. Vote No. 0025882 was found in the bundle of rejected votes, however, it was claimed by Shri Virinder Singh, respondent that the same had actually been polled in his favour. He further stated that the marking has been on his symbol, however, it was smudged. All these votes had been taken out and sealed separately as stated above, for the kind pe....
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....an was found in the bundle of Shri Jaswant Singh, Petitioner. 3. Vote No. 0058546 which had been rejected by the Returning Officer was claimed by Shri Jaswant Singh, Petitioner that the same had been polled in his favour. All these votes were taken out and sealed separately for the kind perusal of the Hon'ble Court. BOOTH NO. 75 1. Vote No. 0066791 which was found in the bundle of Sh. Jaswant Singh, petitioner was claimed to be an invalid vote by Sh. Virinder Singh, respondent. 2. Vote No. 0067048 which is marked at two places and as such an invalid vote, was found in the bundle of Sh. Jaswant Singh, petitioner. 3. Vote No. 0066756 which was found in the bundle of votes rejected by the Returning Officer was claimed by Sh. Virinder Singh, respondent that the same had been polled in his favour. BOOTH NO. 85 (The seals of this bundle were already open.) 1. Vote No. 0076599 which was marked in favour of Sh. Karam Singh, was found in the bundle of Sh. Jaswant Singh, Petitioner. 2. Vote No. 0076615 which was found in the bundle of rejected votes had been claimed by Shri Jaswant Singh, petitioner....
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....sputed by either the Petitioner or the Respondent, the Petitioner has further lost 9 votes whereas the Respondent has gained 3 more votes. The partial recount, it is thus seen generally speaking, falsified the allegations made by the election petitioner in the petition. 10. After the report of the designated officer was submitted to the trial Court, the election petition was listed for hearing. It appears that arguments were heard in part on 12th May 1993, when learned Counsel for the election petitioner (appellant herein) sought time to prepare the case and to examine "if he can advance arguments beyond the pleadings and the prayer in the petition". The case was fixed for 13th May 1993. However, on 13th May 1993 an application came to be filed by the election petitioner himself before the learned Judge quoting some "observations" of the learned Judge made during the hearing the previous day and objecting to the manner in which two sealed envelopes containing ballot papers, on which objections had been raised by both sides during the recount were handled by the Court and sought stay of further arguments to enable the election petitioner to approach the Supreme Court. The lear....
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....ed senior Counsel appearing for the respondent submitted that the pleadings of the election petitioner were hopelessly vague and since a judicial recount is not a matter of right and convincing evidence is the touch stone, the learned Trial Judge could not have ordered a recount in this case. Referring to the pleas raised in the election petition it was submitted that the allegations contained in para 11 to para 24 of the election petition detailing the alleged irregularities committed during the process of counting were hopelessly vague and devoid of factual foundations and did not justify an order of recount and that the petition should have been dismissed as not disclosing any cause of action. It is stated that the allegations were hopelessly vague and no supporting material had been placed on the record, it was also pointed out that no objection had been raised during the counting by the appellant or his agents to RW8 Gulshan Rai, RW9 J.K. Grover and RW10 A.N. Mathur Home Secretary, who had been appointed as observers by the Election Commission and had visited the counting hall and therefore the allegations made in the election petition were an after though aimed at a fishing e....
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....next relied upon the decision of this Court in P.K.K. Shamsudeen Vs KAM Mappillai Mohindeen and argued that there was no factual foundation established by the respondent have an inspection of ballot papers. In our opinion, the said decision had apparently no relevance to the present case. Herein, the High Court by the order dated November 17, 1987 has reached the conclusion and recorded a finding as to the prima facie case calling for inspection of ballot papers. That conclusion as to the prima facie case was based on consideration of relevant evidence produced by the parties. That order of the High Court has been upheld by this Court by dismissing the appellant's special leave petition. The appellant was found by that order and he cannot again contend that there was no factual foundation established by the respondent for inspection. The earlier order of the High Court which has been affirmed by this Court cannot be reopened in this appeal. (Emphasis supplied) 16. The view expressed above in Horo's case (supra) is in consonance with the opinion of the majority in Bhau Mal v. Ch. Parbhu Ram and Ors. [1985]1SCR1099 , wherein it was held: We may also observed that the....
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....r broken or missing, the entire election process had been vitiated. It was submitted that the Returning Officer had retained the ballot papers in his illegal and unlawful custody for a period of about two days "after the declaration of the result" and had also kept back the secret special seal of the Election Commission, besides all XVI Forms, contrary to the rules and the instructions and the state in which some of the packets of the ballot papers were found at the time of recount in the High Court was indicative of the manner in. which the election record had been tampered with after the declaration of the result. It was asserted that the trunks containing the election material had not been deposited for safe custody in the Treasury forthwith as required by the Rules, orders and instruction on the subject and instead had been deposited in the Treasury only on 19th June 1991. According to the appellant, the Returning Officer had acted in violation of Rules 57 and 93 and Instruction No. 23(7) and 23(9) of the Hand Book containing the instructions to the Returning Officers. learned Counsel urged that in the case of all such booths in respect of which ballot appears had been found to....
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....claration illegalities, which could have materially effected the result of the election petition. It was asserted that Rule 63 applies to recount before the declaration of result and the said rule or even the principle of that rule has no application whatsoever to a recount ordered by the Court during the trial of an election petition. learned Counsel went on to state that the partial repoll, as requested for by the learned Counsel for the election petitioner, cannot be ordered by this Court, as the direction to hold polls, including partial repoll, falls within the province of the Election Commission and is not a relief which can be granted by the courts in an election petition. It was argued that repoll and recount are two different situations and that the alleged wrongful acceptance or rejection of votes or irregularities during counting of votes which alone was the main stake of the appellants claim could not justify a prayer for repoll. 21. On a critical analysis of the material on the record, we, find that the allegation regarding the allied tampering with the election material after the declaration of the result, as raised during the arguments before us, has no factual fo....
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....munication Ex. P. 408/C is from the Returning Officer vide which the election material relating to Narnaund constituency was sent. This communication bears my signatures in token of receipt of election material on 19th June 1991. 24. It is this statement, which has been strongly relied upon by the learned Counsel for the appellant to urge that the record had not been sent for safe custody on 17th June and that it had remained with the returning officer till 19th June, and during that period tampering had been done. The inference which the appellant wishes to draw, as we shall presently see, is unreasonable and has no basis. 25. During the cross-examination, P.W. 5 Ashri was challenged on the question of making entries in the Register Ex. P. 408 and the witness stated: The entries are made by the Assistant Treasurer and the same are signed by the Assistant Treasury Officer. All these entries are not in my hand. The entry mark "B" on the same page is not in my hand. The Assistant Treasurer, however, was not examined to depose as to on what day he actually received the trunks and made the entries. We have ourselves perused the Register Ex. P. 408, it contains an entry at "....
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....ad deputed Election Kanungo to deposit the record with the Treasury, who had so deposited it forthwith. Neither the Naib Tehsildar nor the Kanungo were examined by either of the parties to ascertain as to when the sealing was done and when they actually delivered the sealed trunks at the treasury. The matter was allowed to rest at the only. The evidence of the witnesses referred to above reveals that the appellant has failed to establish any breach of rule, order or guideline etc. in the matter of sealing of the election material and delivering it for safe custody in the Treasury. On the basis of the material on the record, it appears to us that the capital which the appellant now seeks to make out of the missing or broken seals on some of the ballot papers during the recount is without any foundation. The evidence and the other material on the record, including the result of recount, falsifies the allegation that the election material had not been properly sealed or that the Returning Officer had indulged in any tampering with the record after the declaration of the result, to further the prospects of the election of the returned candidate. 26. Moreover, it is nobody's case....
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....y vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under this Act. (the High Court) shall declare the election of the returned candidate to be void). (2) if in the opinion of (the High Court) a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but (the High Court) is satisfied (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and (without the consent), of the candidate or his election agent; (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then (the High Court) may decide that the election of the returned candidate is not void. 28. From the plain language of the Section, it would be seen that post declaration non-compl....
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....tement of law is fully applicable to the situation appearing in the present case. In Jagannath Rao v. Raj Kishore and Others AIR1972SC447 , a three Judge Bench of this Court was considering an allegation that the ballot papers had been tampered with, after the declaration of results, and its consequences, if any. The relevant and necessary facts in Jagannath Rao's case (supra) were: 30. The returned candidate had secured 69 votes more than his nearest rival, the election petitioner. After the counting was over, the election petitioner had asked for a recount which was not granted by the Returning Officer. The election petitioner thereafter applied to the Election Commission for inspection of the ballot papers. His request was allowed and the inspection asked for was granted and the ballot papers were inspected. Subsequent thereto, an election petition was filed in which it was contended that some invalid votes as well as some votes cast in his favour and some votes cast in favour of other candidates had been wrongly counted in favour of the returned candidate. Those allegations were denied by the returned candidate who had also filed a recrimination petition. During the pend....
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....voting papers which had been counted. 31. The appeal was allowed and reversing the judgment of the High Court, the election petition was set aside, thereby upholding the election of the returned candidate. 32. The facts in the present case stand at a much better footing. As already noticed, it is nobody's case that the irregularities were committed in the matter of sealing and the safe custody of the election material at the instance of or for the benefit of the returned candidate. As a matter of fact, we find that during the recount proceedings, the Designated Officer, did not generally find any discrepancy between the record of the votes polled by each of the candidate as reflected in form XVI of the particular booth with the number of votes found in the packets of which either the seals were broken or missing, when taken out of the trunks of which the seals were admittedly intact. The intact seals on the trunks containing the election material rules out the possibility of any tampering with the seals on the packets, contained in those trunks. The position may have been different if the seals of the trunks had been found broken or missing. The conditions in which some o....
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....ial leave petition in this Court by the returned candidate, the appellant did not come forward to seek an order of repoll. Besides, the allegations contained in the petition did not make out any case for ordering a partial repoll. We, therefore, refrain from expressing any opinion on the larger question i.e. whether it is within the province of this Court to order a repoll under the Representation of Peoples Act, if the fact situation in a given case so warrants and for the situation under which it can be so ordered and leave it to be decided in an appropriate case at an appropriate time. 34. In view of the above discussion, the order of the High Court calls for no interference. This appeal consequently fails and is dismissed with costs which are assessed at Rs. 10000/ - (Rupees ten thousand). 35. Before parting with this judgment, there is however, one matter which has caused us considerable concern and we wish to advert to it After the recount had been ordered by the learned single Judge in the High Court and the Deputy Registrar had carried out the inspection of the ballot papers of the specified booths, the appellant filed an application in the High Court under Section 15....
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....ication seeking stay as also of the transfer petition, bring the Court into disrepute and are an affront to the majesty of law and offend the dignity of the Court. The appellant is an Advocate and it is painful that by filing the application and the petition as a party in person, couched in an objectionable language, he permitted himself the liberty of indulging in an action, which ill behaves him and does little credit to the noble profession to which he belongs. An advocate has no wider protection than a layman when he commits an act which amounts to contempt of court. It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favorable orders. Only because a lawyer appears as a party in person, he does not get a license thereby to commit contempt of the Court by intimidating the Judges or scandalising the courts. He cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary. These safeguards are not for the protection of any Judge individually....