TMI Blog1994 (11) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 favour of respondent No. 1. the facts and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 complaint had been made either to the Return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 been careless and the result of Assembly Constituency had been prepared on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 perusal of Hon'ble Court. BOOTH NO. 31 (The packet containing the votes of this booth was already open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the same had been polled in his favour. 3. Vote No. 0076726 which was found in the bundle of Sh. Jaswant Singh petitioner is claimed to be an invalid vote by the respondent, having been marked at two places. However, Sh. Jaswant Singh, petitioner claims to be a valid vote and that the same had been right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 learned Trial Judge made the following order and adjourned the case: Counsel for the petitioner has not appeared and the petitioner himself has made a request that he wants to move the Hon'ble Supreme Court for transfer of the Election Petition from this Court. In view of this statement, the petition is being adjourned. The petitioner wants to place a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enquiry through recount. learned Counsel argued that even though as a result of the recount, the returned candidate and not the appellant was the gainer, the direction for recount had been erroneously given and was not at all justified and that this Court, to keep the record straight, may hold that in the nature of pleadings which were vague and indefinit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ached 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 appellant filed a special leave petition against the High Court's order dated March 15, 1983, directing recount of the rejected ballot papers of the appellant and respondent 1 and that it was dismissed after the issue of notice and hearing both he parties. We agree with Mr. Sibal that the order directing recount of the rejected ballot papers insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 be in packets with broken seals as well as the packets on which the seals were found to be missing, a repoll and not merely a recount should have been ordered by the High Court and since, repoll had not been ordered, this Court may in order to do complete justice between the parties and to maintain purity of the elections, order a partial repoll in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 foundations. As a matter of fact there is evidence on the record to show that sealing of the packets and trunks was undertaken by the Naib Tehsildar and the entire record had been sealed before the same was deposited in the Treasury. Dr. Avtar Singh, Returning Officer had directed P.W. 13 to deposit the record with the Treasury and since there is no eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord 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 Mark B opposite which Narnaund constituency is written and it relates to receipt of election record on 17th June 1991. Whereas Mr. Mishra submitted that the said entry does not reflect the receipt of the election material relating to Narnaund constituency. in the sealed trunks on 17th June 1991. Mr. Salve contended that the said entry could only relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the figures contained in Forms XVI, taken out of the trunks, were different from the figures contained in the copies of the relevant From XVI, which the appellant had obtained at the time of counting itself. Votes polled candidate wise as well as the total number of votes polled tallied with the Forms. Recount also established that the entries in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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-compliance with the rules or orders or instructions for the proper custody of the election material by the election staff' is not one of the grounds on which the election of a returned candidate can be set aside. A post electoral irregularities may in a given case be used in aid of the allegations relating to pre-declaration irregularities or illegalities but by themselves they do not afford any ground to avoid an election. In Hals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pendency of the election petition both the returned candidate and the election petitioner applied for reinsertion of the ballot papers. During the inspection of the ballot papers under orders of the Trial Judge, the Counsel for the returned candidate noticed certain facts from which he concluded that the ballot papers might have been tampered with. The returned candidate filed an application before the Court alleging that there were reasons to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the ballot papers were found in the sealed trunk rules out the possibility of any tampering, because had some tampering been done malafide, the packets could have been resealed and properly placed in the trunks before sealing. the trunks. Even otherwise the result of the recount carried out under orders of the Trial Court established beyond any doubt that the figures of the votes polled as reflected in the record maintained during the count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 ₹ 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 151 C.P.C. seeking stay of the further arguments to enable the appellant to move the Supreme Court. In the said application the appellant referred to certain observations made by the learned Judge during the course of arguments and also referred to the manner in which the two packets containing ballot papers which had been objected to by both the parties and had been kept for scrutiny of the learned single Judge, were handled by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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 but are essential for maintaining the dignity and decorum of the Courts and for upholding the majesty of law. Judges and courts are not unduly sensitive or touchy to fair and reasonable criticism of their judgments. Fair comments, even if, out-spoken, but made without any malice or attempting to impair the administration of justice and made in good faith in proper language do not attract any punishment for contempt of court. However, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
