Judgment

PUNCHHI, J. Two principles of election law stand, as always, in competition; one being "purity of elections" and the other being "secrecy of ballot". On the basis of the former, the Kerala High Court has upset the election of the appellant herein. Challenge to the order of the High Court is on the anvil of the latter principle.

2. The appellant and the first respondent were contesting candidates for the Kovalam Assembly Seat No. 138 in the State of Kerala. The appellant was a Janata Dal supported candidate, and the first respondent was the sponsored candidate of the Indian National Congress (I). Candidates of other political parties though being in the fray get no significance insofar as the present matter is concerned. Polling took place on 12-6-1991. Counting took place on 16-6-1991. The Assistant Returning Officer who supervised the counting announced the number of votes polled by the appellant as 49,516 and the first respondent as 49,500. There was a demand of re-count which was conceded to by the Assistant Returning Officer. The final result thereafter showed that the appellant had received 49,515 votes and the first respondent 49,494 votes. Since the appellant had obtained 21 votes in excess of the first respondent he was declared elected from the Constituency. The requisite declaration under Section 66 of the Representation of the People Act, 1951 (hereafter referred to as the Act) was made on 17-6-1991.

3. An election petition was moved by the first respondent. The claim of the election petitioner was that he had obtained more valid votes than the appellant and was therefore entitled to be declared elected instead of the appellant for reasons stated in the election petition. In paragraph 5-A of the election petition, it was asserted that several voters, whose names had wrongly and accidentally been included in the electoral rolls of more than one polling stations in the Constituency had dishonestly voted in the election in both the polling stations taking undue advantage of the double inclusion of their names. It was suggested that this had obviously been done by erasing the ink-mark on the little finger of the voters in order that at the polling station where they voted the second time, neither the polling staff nor the polling agents could become aware of the fraud. The election petitioner further asserted that he had ascertained the names, roll numbers and other details of 19 voters and the polling stations in which they had voted, necessary details of which were furnished in Annexures I and I-A to the election petition. It was pleaded that all the 19 persons had voted twice and. according to Section 62(4) of the Act, both the votes polled were void. Further, those 19 persons had voted for the appellant. He therefore suggested that it was necessary to pick out the votes cast by those persons and eliminate them from consideration, reject able as they were under Section 62(4) of the Act. It was also asserted that if any one or more of these voters claim and prove that their votes at one of the polling stations had been validly cast, it would then be obvious that the vote in the other polling station was cast by an impersonator and hence void and would be liable to be rejected. The petition is supported by an affidavit in accordance with Rule 94-A of the Statutory Election Rules. Annexures I and I-A are part and parcel of the petition.

4. The allegations in the election petition on this score were obviously denied by the appellant. Rather a recrimination petition was filed by the appellant to suggest similar void voting pertaining to other votes, which votes were alleged to have gone to the election petitioner. Issue I struck by the High Court on that score was thus as under:

"Were there impersonation of voters in the election and whether single voter did cast votes in more than one polling station?"

The High Court on examining the evidence led by the parties on the issue found that ballot papers enumerated in parag