1. Election petition challenging result under Representation of the People Act, 1951 — Allegation of void votes cast by persons voting more than once — Section 62. (Para 1 , 2 )
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1996 Supreme(SC) 290
1996(1) Supreme 757
SUPREME COURT OF INDIA
J.S. Verma and K. Venkataswami, JJ.
O. Bharathan -Appellant
versus
K. Sudhakaran & Anr. -Respondents
Civil Appeal No. 3332 of 1992
Decided on 6-2-1996
Important Points
IMPORTANT POINT
The learned Judge was not right in deciding hundreds of the disputed signatures by comparing the counterfoils by himself to declare the votes as void.
The learned Judge was not right in deciding hundreds of the disputed signatures by comparing the counterfoils by himself to declare the votes as void.
Subject
Election Law - Election Dispute
Act Referred
Headnote
Representation of the People Act, 1951-Section 116A-Appeal against order of High Court setting aside the election of appellant from Kerala Legislative Assembly-Allegation of casting of large number of void votes illegally-Evidence of witnesses- Ballot Box opened and 308 void votes found-Instead of appellant, 1st respondent was declared elected by High Court-Whether trial Judge has decided the question of void and invalid votes on insufficient materials and evidence in this case? (Yes) (Para 17)-Judge believed doubted testimony wrongly (Para 19)-Usurpation of comparison of disputed signatures on the counterfoils by Judge not proper (Para 20)-130 votes found validly polled in favour of appellant out of disputed votes-Appellant thus got 43 votes more than 1st respondent-Appeal allowed-Election of appellant was wrongly held void by trial Judge. (Paras 26 & 27)
Legal Category Hierarchy
Table of Contents
2. Challenge to High Court's findings on void votes — Contention that comparing disputed signatures without expert assistance is perverse and legally infirm. (Para 7 , 16 )
3. High Court erred in comparing hundreds of disputed signatures without expert aid — Such approach is hazardous and contrary to the spirit of Section 73, Evidence Act. (Para 17 , 19 , 20 , 21 , 23 , 24 , 25 )
4. Judges should exercise prudence and avoid basing findings solely on self-conducted handwriting comparisons without expert assistance, especially when annulling a popular election result. (Para 23 )
5. Appeal allowed — High Court judgment set aside — Election petition dismissed. (Para 26 , 27 )
6. Can a judge compare disputed signatures themselves under the Evidence Act?
While there is no legal bar to a judge comparing disputed writing with admitted writing, as a matter of prudence and caution, they should hesitate to base findings solely on their own comparison without expert assistance, particularly when such handwriting is the sheet-anchor of the case. (Para 23 )
7. What is the prudent course of action when dealing with disputed handwriting in legal proceedings?
The prudent course is to obtain the opinion and assistance of a skilled and trained expert to ensure scientific comparison, rather than the judge undertaking the hazardous task of comparing disputed signatures alone. (Para 20 , 23 )
8. What standard of proof is required in election petitions regarding void votes compared to corrupt practices?
While a standard of strict proof is insisted upon in election petitions seeking to set aside an election on the ground of corrupt practice, the standard of proof for other grounds should still be of a high nature. (Para 21 )
JUDGMENT
K. Venkataswami, J.-This appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") is preferred against the judgment and order in Election Petition No. 4 of 1991 of the Kerala High Court. The appellant was the elected candidate to Kerala legislative assembly from No.11, Edakkad constituency. The election was held on 12th June, 1991. There was only three candidates in the field. The appellant was polled 54965 votes and the 1st respondent was polled 54746 votes and the appellant having secured 219 votes more than the first respondent was declared as successful candidate. That declaration was challenged by the first respondent by filing an Election Petition as mentioned above.
2. The election of the appellant was challenged by the first respondent on a single ground at the trial on which alone evidence was let in and which found favour with the High Court could be stated by setting out ground (B) as given in the Election Petition :
"B. Similarly large number of other void votes have also been illegally cast and received at the time of the polling which took place on the 12th June, 1991 to the Edakkad Assembly Constituency. In the voters list, the names of some persons who are one and the same but whose names have been entered more than once in the voters list with intentional slight difference in the house No. with variation in the description of their names, in their father s/husband s names etc. Taking into advantage that position more than one vote has been cast in the names of such persons. Under section 62 of the Representation of the People Act, 1951, no person shall at any election vote in the same constituency more than once and, if he does so vote, all his votes in that constituency shall be void. The petitioner respectfully submits that persons whose name and other details are mentioned in the list, produced along with as Annexure-B to the petition, have exercised more than one votes in the election aforesaid to the Edakkad No.11 Assembly Constituency. Since the names and other details of such persons are far to numerous, the petitioner is producing along with the petition a list containing the names and details as Annexure-B to this petition. The reception of the aforesaid votes from the aforesaid persons, was improper and amounted to receiving votes improperly and reception of void votes. More than 1114 votes have been received from the aforesaid persons. Thus about 1114 void votes have been received in the elections to the No. 11 Edakkad Assembly Constituency. Those votes have been counted and taken into account in declaring the first respondent as elected. The petitioner submits that the reception of such void votes has materially affected the results of the elections. The petitioner has reasons to believe that votes that have been cast in the name of those persons whose names appear in Annexure-B have all gone in favour of the first respondent. If those votes are scrutinised, inspected and excluded, undoubtedly it will be revealed that the result of the election in so far as it concerns the first respondent, the returned candidate, has been materially affected by reception of void votes. If those votes are excluded undoubtedly the petitioner would be found to have obtained a majority of the valid votes. But for the reception of the aforesaid void votes the first respondent would never have been declared elected, and Instead the petitioner would have been declared elected."
3. In support of this ground the first respondent (Election Petitioner) has examined as many as 322 witnesses and filed Exhibits numbering about 1293. In the light of the oral and documentary evidence, the learned Judge initially rendered an interim judgment on 10.8.1992 giving a finding as follows:
" I find that 269 votes are void under Section 62 (4) of the Representation of the People Act, 1951 and I have also found 39 votes have been cast by persons whose names were not included in the
