Judgment

Dr. A.S. Anand, CJI.-The appellant was a candidate sponsored by the Indian National Congress in the elections to the Bihar Legislative Assembly from 218, Brahampur Assembly Constituency held in 1995. The respondent, a candidate sponsored by the Janta Dal was declared elected, defeating the appellant by a margin of 26,490 votes. The result of the election was declared on 1st April, 1995. The election of the returned candidate was challenged through an Election Petition filed by the appellant in the Patna High Court. That Election Petition was dismissed on 19th November, 1998. Hence, this appeal.

2. The challenge to the election of the respondent in the Election Petition was based on the sole ground of improper reception of void votes in favour of the returned candidate and not counting of valid votes polled in favour of the appellant. In paragraph 13 of the Elec­tion Petition, the appellant stated thus :

“13. That in counting of the ballot papers, 20,000 valid ballot papers of the petitioner were not counted and on the other hand 20000 spuri­ous ballot papers bearing vote in favour of the sole respondent, the nominee of Jantadal were illegally counted in his favour.”

Again in paragraph 20 of the Election Petition, it was averred as follows :

“20. That the commission of the irregularities in counting including 20,000 valid and spurious ballot papers in favour of respondent and not counting 20,000 genuine ballot papers of the petitioner has merely effect (sic) the result of the election.”

Paragraph 21 of the Election Petition contained the following aver­ment:

“21. That after inspection of scrunity (sic) and recounting of the ballot papers and elimination of 20,000 spurious ballot papers from the total number of vote counted in favour of respondent and counting of 20,000 genuine votes of the petitioner will render the election of the sole respondent as invalid and is fit to be declared void.”

3. The Election Petition was resisted by the returned candidate and all the allegations were denied. Apart from raising certain prelimi­nary objections, the respondent asserted that since the Election Petition contained vague pleadings based on mere suspicion, the same was liable to be dismissed under Order VII Rule 11 of the Code of Civil Procedure also. From the pleadings of the parties, the following issues were framed :

“(i) Whether the election petition in its present frame is maintain­able?

(ii) Whether the election petition is liable to be dismissed due to non-compliance with the provisions of Sections 81, 82, 83 and 117 of the Representation of People Act?

(iii) Whether 20,000 votes, as detailed in paragraph 14 of the election petition, were spurious in nature and counted in favour of respondent in place of equal number of votes validly polled in favour of the election petitioner?

(iv) Whether the election petitioner is entitled to the relief sought by him?”

The material issue for consideration is issue No. 3 since issue Nos. 1 and 2 were not pressed.

4. The gravamen of the charge, insofar as issue No. 3 is concerned is that about 20,000 votes which had been cast in favour of the appellant were “removed” or “caused to disappear” from the ballot boxes and in place of those votes, 20,000 spurious ballot papers, were put in the ballot boxes and counted in favour of the respondent. The grounds, on which the ballot papers were alleged to be spurious were given in the Election Petition. According to the appellant, the seals of about 100 ballot boxes were found tampered with. This allegation was made with a view to support the submission that 20,000 valid votes polled in favour of the appellant were removed from the ballot boxes and re­placed by 20,000 spurious votes marked in favour of the respondent. The appellant addressed complaints to the District Electoral Officer and Chief Election Commissioner and copies of the complaints were annexed to the Election Petition.

5. Al