IMPORTANT POINTS
Not pleading material facts at the outset in an election petition is fatal.
Inspection of ballot papers and counterfoils should not be allowed for roving enquiry.

JUDGMENT

H.L. Gokhale J.-Leave granted.

2. This appeal is directed against the Judgment and Order dated 14.9.2010 passed by a Learned Single Judge of Gauhati High Court in Misc. Case (E.P.) No. 05(AP)/2010 in Election Petition No. 01(AP)/2009 whereby the High Court has allowed the Interlocutory application filed by the first respondent herein, and directed the District Returning Officer, Distt. Papum Pare, Arunachal Pradesh to produce the record of Register of voters' counterfoils (in Form 17A) of 38 polling stations of 13-Itanagar (ST) Assembly Constituency in that State.

Brief facts leading to this appeal are as follows:-

3. The appellant and the respondent No. 1 herein contested the election to the Arunachal Pradesh Legislative Assembly from 20-Tali (ST) Assembly Constituency held in October 2009, wherein the appellant was declared elected, defeating his nearest rival respondent No. 1, by 2713 votes. Respondent No. 1 filed Election Petition No. 01/2009 to challenge the election of the appellant on the ground of corrupt practice of booth capturing. This 20-Tali (ST) Assembly Constituency consists of two circles viz. (i) Tali, and (ii) Pipsorang. Each of the circles was having 10 polling stations. The voting had taken place on 13.10.2009. It was alleged that on two polling stations viz. (i) 7-Roing and (ii) 2-Ruhi from circle Tali, boxes (containing EVMs) were illegally removed by the party workers of the appellant, and votes in favour of the appellant were cast by a single hand. The common voters were not allowed to exercise their voting rights as they were threatened for their lives by the miscreants of the appellant. It was claimed that polling agents of the first respondent at these two polling stations jointly reported about the happenings in these polling stations on 15.10.2009 to the Assistant Returning Officer. It was alleged that such incidents also took place on 6 more polling stations. In para 9 of the petition, it was stated that, it was necessary to bring the EVMs and counter foils of Form 17A (register of voters) of these 8-polling stations (mentioned in para-7 of the petition) for forensic test and other examination etc. before the Hon'ble Court for proper adjudication of the case. It was stated that the votes received by the appellant in these 8 polling stations were 3763, and if they were deleted from the votes of appellant, the first respondent would be declared as elected. It was prayed that the records of (i) register of voters counterfoils (Form 17-A) of these 8 polling stations described in paragraph 7 of the petition, (ii) EVMs of these 8 polling stations, and (iii) records relating to 20 Tali (ST) Assembly Constituency be called, and appellant be directed to show cause as to why those votes cast by booth capturing in 8 polling stations in favour of the appellant should not be declared as illegal, and the election order dated 22.10.2009 be not declared as void, and why the respondent No. 1 should not be declared as elected candidate.

4. The appellant contested this petition by filing a Written Statement. He submitted that no unfair means were employed by him, or by his agents, and stated that the allegation of illegal practice adopted in 8 polling stations is completely false. He submitted that the election was conducted peacefully with free and fair means. The polling stations were guarded by police personnel who carried arms and ammunitions. There was no booth capturing or criminal intimidation at all. EVMs and voters' counterfoils were duly verified at the Receiving Centre, and there was no need to call for any of these documents, nor was there any question to declare the election void.

5. The learned Judge framed the necessary issues on 8th March, 2010 including as to whether the EVMs were illegally removed, whether any election offence of booth capturing and criminal intimidation was committed, whether the election was liable to be declared void under Section 100 of the Representation of the People