2012 Supreme(Guj) 54

2012 (2) GCD 905 (SC)
Hon’ble Mr. Justice Deepak Verma &
Hon’ble Mr. Justice H.L. Gokhale
Markio Tado
Versus
Takam Sorang & Ors.
Civil Appeal No. 1539 of 20121—Decided on 02/02/2012

Point in Issue :
Whether in the facts of the case it was proper and legal to allow application to call for election record.

Headnote:Head Note :

       Representation of the Peoples Act, 1951 (Central Act 43 of 1951) — Sections 100, 100(1)(d), 100(1)(d)(iii), 123 (8) and 135-A — Conduct of Election Rules, 1961 — Rules 49(L), 49(L)1(a) and 93(1), 93(1)(a) to (d) and (e) — Interlocutory application — Allowing production of record of Register of voters counterfoils (in Form 17A) of 38 polling stations — Propriety of order — Finding as to — Sustainability — In the present case election petition is filed by respondent on grounds of booth capturing and impersonation or double voting — But with regard double voting there is no allegation in election petition and no issue was framed in this regard for the trial — Respondent could not have been allowed to lead evidence also on the ground — The evidence which has come on record does not mention the names of the persons who voted — Besides to claim any benefit on account of double voting the candidate is required to show that returned candidate was materially affected — That is not made out from the facts alleged in petition — So far as booth capturing is concerned the appellant has not mentioned the names of persons involved therein — There is as such there is no evidence of either booth capturing or impersonation — The respondent therefore can not be allowed fishing and roving enquiry to improve his case by calling the record in his support of allegations — Court held that in the facts Learned Single Judge was clearly in error in allowing the application of respondent to call the record of voters register etc — Order being illegal and unsustainable set aside.

       Held :

       One must note that in an election petition, one has to plead the material facts at the outset, and the failure to plead the same is fatal to the election petition. [Para 16]

       As far as impersonation or double voting is concerned, such actions would amount to improper reception of votes which is a separate ground for declaring an election to be void under Section 100 (1) (d) (iii) of the said Act. This ground was not pleaded in the petition, nor was any issue framed thereon for the trial. As can be seen from the explanation to Section 135-A, the main element of booth capturing is use of force or intimidation. As against that impersonation or double voting involves cheating or deception. Thus, these two grounds deal with two different aspects of corrupt practices. That being the position, the question is as to whether the Respondent No. 1 could have been permitted to lead any evidence in this behalf without raising the ground in this election petition. [Para 18]

       The evidence which had come on record clearly showed that the first respondent received overwhelming votes in some polling stations, whereas the appellant received similarly overwhelming votes in other polling stations. The statement of the first respondent that the appellant had appointed fake polling agents for the first respondent was a clear after thought, since if it was so, he would pleaded the same in the election petition itself. He has not mentioned the names of the persons allegedly involved in booth capturing. Even with respect to impersonation, the only instance pointed out was that of one Markio Tama, but it was not stated in the petition or in evidence as to who voted in his place. It is thus obvious that having failed to place any material with respect to either booth capturing or impersonation, the first respondent was trying to make fishing and roving inquiry to improve his case by calling for the record of the voters register from Itanagar Constituency, in support of his grievance of double voting. In the absence of any evidence with respect to the persons who at the instance of the appellant allegedly captured the booths or made double voting or impersonation in Tali Constituency, no such inference could have been drawn against the appellant. The learned Single Judge, therefore, was clearly in error in allowing the second application made by the first respondent. [Para 19]

       Besides, the ground of improper reception requires a candidate to show as to how the election in so far as it concerns the returned candidate was materially affected, in view of the requirement of Section 100 (1)(d) of the Act of 1951. First respondent has stated that there were some 1304 double entries of voters. The allegation of Respondent No. 1 on evidence was only with respect to Roing and Ruhi polling station. The votes received by the appellant in both these polling stations put together come to 1873. The appellant has won with a margin of 2713 votes. That being so the second application could not have been entertained even on that ground in the absence of prima facie case that the result of the election had been materially affected.

        [Para 20]

       Law Laid Down :

       Election petition on ground of improper reception of votes requires a candidate to show as to how the election in so far as it concerns the returned candidate was materially affected.