Full Judgment Text
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CASE NO.:
Appeal (civil) 4621 of 2002
PETITIONER:
Hari Shankar Prasad
RESPONDENT:
Shahid Ali Khan & Ors.
DATE OF JUDGMENT: 13/03/2003
BENCH:
R.C.Lahoti & Brijesh Kumar.
JUDGMENT:
JUDGMENT
Brijesh Kumar, J.
This is an appeal under Section 16(A) of the
Representation of People Act, 1951 (for short ’the Act’)
against the judgment of the Patna High Court dismissing the
election petition filed by the appellant and upholding the
election of respondent no.1 to the State Assembly.
The appellant Hari Shankar Prasad contested
the election held in February, 2000 as a candidate for
Sitamarhi Assembly Constituency No.67 in the State of
Bihar. He was a B.J.P. candidate whereas the respondent
no.1 Shahid Ali Khan, who has been declared elected has
been a candidate of Rashtriya Janta Dal. A number of
other candidates were also in the fray. The polling was held
on 22.2.2000, the counting was done on 25.2.2000 and the
result was declared on 27.2.2000. Respondent No.1
Shahid Ali Khan was declared elected defeating his nearest
rival, namely, the appellant Hari Shankar Prasad by a
margin of 35 votes.
The appellant filed an election petition inter alia
on two grounds which seem to have been pressed before the
High Court one in respect of rejection of 90 votes casted in
his favour and the other about loss of a bundle of another
50 ballot papers in his favour. The High Court has not
accepted either of the grounds which have now been raised
in this appeal but the learned counsel for the appellant has
confined his submissions in regard to rejection of 90 ballot
papers which were casted in his favour. In the fourth round
of the counting of the votes of Booth No.49 at Table No.7,
it was found that 90 ballot papers in favour of the appellant
were marked by the stamp of "distinguishing mark" used by
the polling officer while issuing the ballot paper and not by
the stamp meant for voting. These ballot papers were
separated and not counted for the appellant. The polling
agent of the appellant raised objection and lodged a protest
in writing to the Returning Officer but of no avail. A fax
message was flashed to the Election Commission, on behalf
of the appellant. A reference also seems to have been made
to the Election Commission of India by the Returning
Officer of No.67 Sitamarhi Assembly Constituency. The
Election Commission in response thereof issued the
directions on 26.2.2000, a copy of which has been placed on
the record as Annexure P-7. It reads as follows :
"..If the Presiding Officer or the polling staff
has, by mistake, supplied the distinguishing mark
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stamp to voters for making ballot papers, the
ballot papers so marked should not be
rejected"
The Returning Officer, after considering the
matter, rejected 90 ballot paperts which were in favour of
the appellant and declared the respondent no.1 Shahid Ali
Khan as elected by a margin of 35 votes. The order
declaring the result and containing the reasoning rejecting
the objections of the appellant is Annexure P-8, relevant
portion of which is extracted as below :
".Vide letter no.459/BR-LA/2000 (67) an
order was received from the commission that
those 90 ballot papers which had distinguishing
mark stamps may be counted by considering them
to be correct. It is relevant to mention that
those ballot papers were counted during
counting. As they have been counted once, there
is no need to recount them and they are in favour
of one party. Information with respect to same
was given to all election agents/candidates, who
signed the result sheet of that round in this
constituency in other booths and in 68, Bathnaha
Assembly Constituency, decision had been taken
to reject such ballot papers at the time of
counting. I am fully satisfied that it was not due
to fault of the presiding officer or polling
officer that by mistake distinguishing mark
stamp had been given to voters, as other ballot
papers of the same booth had mark made by
arrow cross instrument"
According to the appellant the wrong rubber seal
meant for putting "distinguishing mark" was provided by the
polling staff to the voters and the same continued to be
used while casting their votes during the first one and a
half hours. Later on on detection of the fault in providing
the wrong seal it was changed and thereafter the ballot
papers were marked by the voters by the rubber stamp of
cross mark meant for the use by a voter to cast his vote for
any particular candidate. The case of the appellant is that
since the mistake is that of the polling staff such votes
bearing the marking of distinguishing mark could not be
rejected and have to be counted in favour of the appellant.
Respondent no.1 refuted the allegations made by
the appellant challenging his election and a Recriminatory
Petition was also filed setting up a case of booth capturing
by the appellant along with his son and other anti-social
elements and during that period it is alleged that the
appellant committed corrupt practice as defined under
Section 83 of the Act. The 90 votes, therefore, were
rightly rejected by the Returning Officer.
Both parties have led evidence, documentary as
well as oral, in support of their respective case. As
indicated earlier, the High Court did not accept the case of
the appellant and dismissed the petition. It may, however,
have to be examined whether there was any mistake or not
on the part of the polling staff in providing a wrong rubber
stamp by reason of which the mark other than prescribed
for marking the ballot paper by a voter has been used
making the ballot paper liable to be rejected. It may also
have to be seen whether there has been any booth capturing
as alleged by respondent no.1 to explain the marking of 90
ballot papers by rubber stamp meant for putting
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distinguishing mark by the polling staff.
In connection with the above controversy,
relevant provisions of The Conduct of Election Rules, 1961
(for short ’the Rules’) may be perused. Rule 39 deals with
Maintenance of secrecy of voting by electors within polling
station and voting procedure. Rule 39(2)(b) provides as
under :
"39(1) xxx xxx xxx
(2) The elector on receiving the ballot paper shall
forthwith
(a) xxx xxx xxx
(b) there make a mark on the ballot paper with
the instrument supplied for the purpose on
or near the symbol of the candidate for
whom he intends to vote;
(emphasis supplied)
(c) xxx xxx xxx"
Rule 56 deals with Counting of Votes. Rules 56(2)(b)
reads as under :
"56(1) xxxx xxx xxx
(2) The returning officer shall reject a
ballot paper
(a) xxx xxx xxx
(b) if it bears no mark at all or, to indicate
the vote, it bears a mark elsewhere than on
or near the symbol of one of the candidates
on the face of the ballot paper or, it bears a
mark made otherwise than with the
instrument supplied for the purpose, or
(emphasis supplied)
(c) xxx xxx xxx"
From the perusal of the above provisions, it is clear that
the ballot paper is liable to be rejected in case it bears a
mark made otherwise than by the instrument supplied for
the purpose i.e. to say if the mark has been made by an
instrument supplied by the polling staff, the ballot paper
would not be liable to be rejected. As indicated earlier,
both parties have adduced oral and documentary evidence in
support of their case. The High Court has rejected the
case of the appellant on the ground that besides the polling
officer PW 5 Awadhesh Kumar no other witness was
produced in support of the case that wrong seal was
supplied to the voters. It has also been found that the
diary of the presiding officer does not mention about the
supply of the wrong seal. Therefore, the case of the
petitioner was not accepted. It is also observed that it was
for the first time in the Court that PW 5 Awadhesh Kumar
had made a statement that wrong seal was given by him by
mistake to the voters which was later on taken back and
correct seal was supplied. The High Court has also observed
that in the election petition and other protest applications
it was not indicated that wrong seal was provided by PW 5
Awadhesh Kumar. The High Court has also heavily relied
upon the fact that after getting instructions from the
Election Commission of India the returning officer had
considered the matter and had rejected the objection
raised by the petitioner.
So far the case of the respondent no.1 regarding
booth capturing is concerned the Court has held that such
allegations have not been proved nor any such allegation was
made ever before at any point of time. Therefore, the case
of booth capturing as set up by respondent no.1 was also
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rejected.
In the above background we may examine the
reasons assigned by the High Court in not accepting the
case of the petitioner and further as to how far such
reasons are sustainable on the material available on record.
Learned counsel for the appellant has firstly
drawn our attention to the averments made in the election
petition, more particularly, to paragraph 12 of the petition
wherein it is averred that in round no.4 at table no.7, booth
no.49, 93 ballot papers found polled and marked in favour of
the petitioner, were deliberately put in the column of the
doubtful votes and were wrongly rejected by the returning
officer in violation of Rule 56 of the Conduct of Rules, 1961.
In para 13 it is averred that election agent of the petitioner
had lodged a protest then and there on 25.2.2000 itself
during the course of the counting. It is further averred
that counting was stopped for sometime telling the agent
that the matter was being referred to the election
commission for seeking its instructions. In para 17 it has
been averred that despite the instructions of the Election
Commission of India the returning officer had wrongly
rejected 90 ballot papers marked in his favour. It is also
averred that the polling staff by mistake had supplied the
seal of the "distinguishing mark" to the voters. We also
find that the fax message sent by the returning officer to
the Election Commission of India, a copy of which has been
placed on record as Annexure P-6, mentions in column 5
under the heading "any other unusual feature" as follows :
"90 polled ballot papers were found which were
not polled with the prescribed stamp but were
stamped with distinguishing mark which was
considered as doubtful while counting and were
rejected after hearing vote is only 35, therefore
the matter is being referred to Election
Commission for permitting the Returning Officer
to declare the result."
The reply of the election commission dated
26.2.2000 has already been quoted in the earlier part of
this judgment. These facts leave no room to doubt that
right from the very beginning a protest has been made on
behalf of the appellant regarding non-counting of 90 votes
in his favour.
The Election Commission has very clearly
instructed to the Returning Officer that if the Presiding
Officer or the polling staff had by mistake supplied the
distinguishing mark stamp to voters, the ballot papers so
marked should not be rejected. It was further directed
"you should therefore review the matter and scrutinize
those 90 ballot papers on merits and count them in favour
of the candidate for whom they are validly marked". The
Returning Officer passed the order on 27.2.2000 rejecting
90 ballot papers and declared the result. The Returning
Officer in his order dated 27.2.2000 while rejecting the
ballot papers observes "I am fully satisfied that it was not
due to fault of the Presiding Officer or polling officer that
by mistake distinguishing mark stamp had been given to
voters, as other ballot papers of the same booth had mark
made by arrow and cross instrument". The order does not
indicate at all if the Returning Officer had made any
enquiry whatsoever from anyone regarding the fact of
supply of distinguishing mark stamp by mistake of the
Presiding Officer or any of the polling officer. It is
nobody’s case that all the votes of the polling booth were
stamped by wrong stamp. The petitioner’s case is that it
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was only for one and half hours in the beginning that the
ballot papers were marked by wrong stamp where after
correct stamp was supplied. It is not at all indicated as to
on what basis the Returning Officer "felt satisfied" that it
was not due to fault of Presiding Officer or any of the
polling officer that wrong stamp was supplied. The case of
booth capturing has been discarded by the High Court.
There has been no such allegation or objection earlier by
respondent no.1. The Returning Officer has not indicated
nor shown to have made any effort to find out as to in what
circumstances wrong stamp was put on only 90 ballot papers
out of the 440 votes polled at booth no.49. The petitioner,
to substantiate his case examined PW 5 Awadhesh Kumar
one of the Polling Officers who was assigned the duty of
providing stamp for putting the mark on the ballot papers.
He has very clearly stated that he was entrusted with the
duty of making over rubber stamp to the voters and to see
that the ballot papers are properly folded and put into the
box. He further stated that after about one and half hours
the rubber stamp which was provided by the Presiding
Officer was taken back saying that it was not the proper
stamp and another stamp was given for the purpose. In
cross-examination he denied the suggestion that he was
making a false statement at the instance of the petitioner.
He further told that he is employee of a Bank and did not
remember the name of the Presiding Officer but only
remembered that he was an employee of Silk Industry
department. The reason assigned by the High Court for not
accepting the statement of PW 5 is that no other person
was examined to support his statement, does not seem to be
a cogent reason. Non-mention of the fact of providing a
wrong stamp in the diary of the Polling Officer too, cannot
be taken to be a valid reason for not accepting the
statement of PW 5. The Polling Officer may or may not
have attached any special importance to the fact that
initially for some time wrong stamp was used or may have
avoided to mention this fact in the diary. The diary and the
filling up of the same, was under his own control. In case
wrong stamp was provided by him to the Polling Officer no.3
who passed it on to the voters, non-mention of this fact by
him in the diary would not lead to any inference that no such
mistake was committed. Non-mention of such a fact would
obviously suit the polling officer. There is a positive
statement of the person himself who had provided the
stamp to the voters. It was not necessary at all for the
petitioner to have examined other polling officers once the
statement came from the horse’s mouth. The statement of
PW 5 is in consonance with circumstances and the plea of
the petitioner. The respondent no.1 could produce the
Presiding Officer as his witness to indicate that he had
given the correct stamp alone to the Polling Officer no.3,
Awadhesh Kumar to be supplied to the voters.
The Returning Officer himself has come to the
conclusion that only 90 ballot papers were marked by a
wrong stamp and since all other ballot papers were not
wrongly stamped would not lead to inference that it was not
due to mistake of the polling staff, which inference has
been wrongly drawn by the Returning Officer. It rather
goes to show that as soon as the mistake was detected the
wrong stamp was withdrawn as a result of which after the
withdrawal of the wrong stamp rest of the ballot papers
were stamped by a correct stamp. At the risk of repetition
we may again mention that the theory of booth capturing
which could perhaps explain this kind of wrong seal on the
ballot papers, has been discarded by the High Court. The
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circumstances indicated by PW 5 in his evidence provides a
plausible reason, as to how only 90 ballot papers were
stamped by distinguishing mark and not the rest of them.
It is also incorrect on the part of the High Court to say
that in the petition, no such case was pleaded. We have
referred to the averments made in para 17 of the election
petition that by mistake polling staff had supplied a wrong
stamp. The case of supply of wrong stamp was very much
pleaded right from the initial stage.
The Returning Officer has been examined as DW
5. In his cross-examination he has stated that he had
reinvestigated the matter regarding wrongly stamped 90
votes in the presence of the Central Observer and he was
quite satisfied that no mistake was committed either by the
Presiding Officer or by the polling officer. In reply to the
another question he stated as follows :
"If the Central Observer had written anything
to the Election Commission of India in the
following manner :
"Speaking order passed by Returning Officer on
the decision/order of ECI which I could get from
him after lot of persuasions. The complaint given
to me by BJP candidate after declaration of
result is also enclosed as Annexure-C. From the
perusal of my report, it is quite clear that the
R.O. has not complied with the orders of ECI and
the instructions of the Observer. His action
smacks of favouritism in favour of winning
candidate, perhaps under political pressure."
then the same is totally false and biased"
In the later part of his statement he further states as
follows :
"Regarding the distinguishing marks and the seals
in those ballots had not been enquired and
verified specifically from the polling staff."
It is not understandable what enquiry then the Returning
Officer actually made in regard to supply of the wrong
stamp to the voters, on the basis of which he "felt
satisfied" that no wrong stamp was supplied by the polling
staff. It is just a bald observation in his order without any
enquiry worth the name. The order rejecting the 90 ballot
papers is against the instructions and orders of the Election
Commission of India dated 26.2.2000 which required the
Returning Officer to enquire into the fact if the Presiding
Officer or the polling staff had by mistake supplied the
distinguishing mark stamp to voters marking the ballot
paper and, in case that was so, the ballot papers should not
be rejected. Only the Presiding Officer and the polling
staff would have been the proper persons from whom the
Returning Officer was supposed to have made enquiries but
admittedly he failed to do so. The High Court clearly erred
in placing much reliance upon the order of the Returning
Officer, on reconsideration of the complaint of the
petitioner about rejection of 90 votes. Such a report/order
which is admittedly based on no enquiry, much less from the
concerned persons, who could throw light on the fact, is an
order or report based on no material,it is vitiated and liable
to be ignored. In this background we find that there was no
reason, not to accept the statement of PW-5 one of the
polling officers who as per his duty as assigned, had supplied
the stamp to the voters and has further stated that the
stamp was withdrawn about one and a half hours after the
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voting started, where after correct stamp was supplied by
the Presiding Officer. His statement is fully supported by
the circumstances.
On behalf of respondent no.1, a reference has
been made to a decision reported in (1970) 2 SCC p.462,
Shri Manni Lal Vs. Shri Parmai Lal & Ors., holding that it is
the duty of the petitioner to prove the fact that the ballot
papers were marked by the stamp issued by the polling
staff. In absence thereof, the ballot papers were held to
be rightly rejected. There is no dispute about the
proposition of law and in this case, in our view, the
petitioner has proved the fact that stamp was supplied by
the polling staff by examining PW 5, one of the polling
officers whose duty it was to provide the rubber stamp to
the voters. On behalf of the appellant reliance has been
placed upon the decision of this Court reported in (1999) 8
SCC p.692, T.H.Musthaffa Vs. M.P.Varghese and Ors., where
it has been held that where supply of wrong instrument is
due to mistake of the polling officer to the voters and the
ballot papers having been marked by such stamp as supplied
wrongly, they are not liable to be rejected.
On consideration of all the material available on
the record, we find that the wrong stamp was made
available to the voters by the polling officer. That being
the position, such of the ballot papers marked by the stamp
supplied have been wrongly rejected by the Returning
Officer and they are to be counted in favour of the
petitioner-appellant also as per the directions of the
Election Commission. The margin of vote between two
contenders is only 35 votes, counting 90 votes in favour of
the appellant would provide a lead of 55 votes to the
petitioner-appellant who would be entitled for being
declared elected.
For the discussion held above, the election
petition is allowed with costs. The declaration of
respondent no.1 as elected is set aside and the petitioner
appellant is declared elected from Sitamarhi Assembly
Constituency No.67, State of Bihar.
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