Rajasthan High Court - Jaipur
Nathuram Mirdha vs Gordhan Soni And Anr. on 8 October, 1968
Equivalent citations: 1968WLN61
JUDGMENT Jagat Naraian, J.
1. This election petition has been remanded on appeal for redecision after recounting of the ballot papers. In this election petition Shri Nathu Ram Mirdha, the defeated candidate, has challenged the election of Shri Gordhan Soni, respondent No. 1 to the Rajasthan Legislative Assembly from the Merta Assembly constituency on the ground specified in Section 100(1)(d)(iii) of the Representation of the People Act. Shri S.B. Arye, Sub Divisional Officer, Merta who acted as Returning Officer for this constituency has been impleaded as respondent No. 2 in this petition. The election petition was dismissed by me by my judgment dated 22nd August 1967. The material facts are given in detail in that judgment, but it is necessary to reinstate some of them. Poll was held on 15th February 1967. Counting took place on 21st February and 22nd February 1967 in Merta and the result of the election was declared after the counting on 22-2-67. According to the counting made by the Returning Officer respondent No. 1 polled 23169 valid votes. The petitioner polled 22458 valid votes and 3440 votes were rejected as invalid.
2. Counting of the Assembly ballot papers was done at 7 tables by a staff of 3 persons on each table-One supervisor and two counting assistants. One counting agent of each of the two candidates sat on each table. The ballot papers were sorted out in 3 lots in 3 steel trays. In one tray ballot papers which were validly marked for the petitioner were kept. In the second tray ballot papers which were validly marked for respondent No. 1 were kept. In the third tray "doubtful" ballot papers were kept. The ballot papers in each tray were then made into bundles of 50 each and the odd ball: t papers were also made into a separate bundle by tying them with rubber band?. All the bundles in one tray were then tied together into a bigger bundle with rubber band or with sutli. It may be mentioned here that all the ballot papers from one station were counted at one time at one table. Under Rule 45 of the Conduct of Election Rules 1961 the Presiding Officer has to prepare a ballot paper account in form No. 16 and send it to the Returning Officer along with ballot boxes. This ballot paper account gives the total number of ballot papers issued to voters together with their serial numbers. According to instruction No. 9 of the 'Instructions to Counting Supervisors and Assistants" Part II, form No. 16 should be filled by counting Supervisors after they have completed the counting of the polling station. The Supervisor enters the name of the candidates and the number of valid votes cast for them in the columns provided for this purpose. In the the column provided for entering the rejected ballet papers he enters the number of doubtful ballot papers. These bundles are then taken to the table of the Returning Officer, who test checks the bundles of the valid ballot papers of the candidates and scrutinises each doubtful ballot paper. He is the final authority competent to reject a ballot paper. If he accepts any doubtful ballot paper, for any candidate he adds it to the number of valid votes for that and date. If as a result of test checking he rejects a ballot paper counted as valid by the Supervisor for a candidate then he deducts it from the number of valid votes of that candidate. Part II of form No. 16 if filled in accordance with the Instructions, goes to show how many of the doubtful ballot papers were accepted by the Returning Officer for the respective candidates and how many of their "valid votes" were rejected by him. If a supervisor acts honestly then he applies the same standard in treating a ballot paper as doubtful irrespective of the fact whether his decision would favour one candidate or another. The Returning Officer is also expected to act honestly and apply the same standard in rejecting a ballot paper irrespective of whether his decision favours one candidate or another. In a normal case where the votes polled by two candidates are almost equal the decision of the Returning Officer is likely to be in favour of or against the two candidates almost equally. A perusal of Part II of form No. 16 thus shows whether the Returning Officer has acted impartially or not. In this particular case the Returning Officer did not allow the Supervisors to fill part II of form No. 16 at their tables after counting in accordance with the Instructions although he was fully aware of them. He got part II of form No. 16 filled after his scrutiny. It is therefore not possible to find out how many ballot popers of the two respective candidates were treated as doubtful by the Supervisors and how many of them were accepted by them for one candidate and how many for the other.
3. After the counting on 21-2-67 was over respondent No. 1 complained to the Election Commissioner, New Delhi, the Chief Election Officer, Jaipur and the District Election Officer, Nagaur by sending telegrams and telephonic message that the Returning Officer was showing partiality towards the petitioner who was at the time a Cabinet Minister in the Govt, of Rajasthan. On 22-2-67 he filed application Ex. 9 before the Returning Officer complaining inter alia he did not permit counting supervisors to fill in form No. 16 but got it filled at his table after he had scrutinised the ballot papers. At this the Returning Officer wrote out an order that the form was being filled up by the supervisors in accordance with the Rules. The Returning Officer admitted in his evidence that the form was filled at his table by Jigar Mohammad after his scrutiny and was not filled by the supervisors in accordance with the rules.
4. Bundles of ballot papers of each polling station were kept in a pigeon hole after scrutiny. It is not disputed that 3 bundles were made at each table-2 containing the valid ballot papers of the two respective candidates and the third containing the doubtful ballot papers. According to Shri Ajmera P.W. 2, Election agent of the petitioner, these 3 bundles were then tied together into a bigger bundle. Instruction No. 10 of the "Instructions to Counting Supervisors and Assistants" (Ex A/I) also lays down that all the bigger bundles should be tied up in one packet The other witnesses did not say that they were so tied up in one packet. The said that these 3 bundles were kept in the piegon hole and from the pigeon hole they were taken out and kept on the table of the Returning Officer. The Returning Officer admittedly himself scrutinised the doubtful ballot papers. The evidence as to who really test checked the bundles of valid ballot papers and the extent of this test checking is discrepant and has been dealt with in my previous judgment.
5. It was alleged in the petition that some bundles of doubtful ballot papers of some polling stations were included in the bigger bundles of valid ballot papers of respondent No. 1 either inadvertantly or deliberately. These mistakes were detected by the counting agents of the petitioner on 21-2--67. The petitioner accordingly made an application (Ex. 2) on 22-2-67 seeking a fresh count of the ballot papers already counted on 21-2-67. The petitioner went on to allege that a similar mistake were again repeated during the counting on 22-2-67 in some polling stations about which application Ex. 3 was made after the counting was over. The Returning Officer rejected both these applications. Another allegation made in the petitioner was that in Rohisi Polling station a bundle of 50 valid ballot papers of the petitioner was wrongly counted in favour of respondent No. 1. Lastly it was alleged that in 6 polling stations 36 valid ballot papers of the petitioner were improperly rejected by the Returning Officer. The serial numbers of these ballot papers were given in the petition. The petitioner also appended schedule I giving a list of 22 polling stations at which one or two bundles of 50 doubtful ballot papers had been included in the bundles of valid ballot papers of respondent No. 1 and counted for him. It was asserted that on account of the above mistake the result of the election was materially affected. A prayer for recount was made.
6. In the reply to the petition it was denied on behalf of respondent No. 1 that any mistake of the nature alleged in the petition had taken place. It was pointed out that no allegation of the nature made in the election petition was made by the petitioner in the two applications filed by him before the Returning Officer on 22-2-67. It was contended that the petitioner was not entitled to a recount of ballot papers.
7.It was also asserted that respondent No. 1 had strong reasons to a apprehend that the petitioner "who happens to be very influential man in Rajasthan and who was till recently a very eminent Minister appears to have got the ballot papers tampered with while they were in the custody of the Returing officer for about 6 days after the declaration of the result and had filed the present election on the basis of such tapmpering with the ballot papers.
8. In his reply to the petition respondent No. 2 asserted categorically that no mistake of the nature alleged in the petition had been made. He emphatically denied that any mixing up of doubtful ballot papers with valid ballot papers of respondent No. 1 had taken place. He also denied that the ballot papers were tampered with after counting during the period of 6 days when they were detained at Merta.
9. Respondent No. 1 also filed a recriminatory petition to which the petitioner filed a reply. The only issue which arose on the petition filed by the petitioner was "Is the petitioner entitled to a recount?" This issue was framed and the evidence of the parties was recorded on it.
10. As a result of the examination of the evidence and the circumstances of the case, 1 came to the finding that the allegation that any bundle of doubtful ballot papers was included in the bundles of valid ballot papers of respondent No. 1 either inadvertently or deliberately was not true. The allegation that one bundle of 50 valid ballot papers of the petitioner was counted in favour of respondent No. 1 was also not supported by any witness of the petitioner and had therefore not been proved. The remaining allegation that 36 ballot papers of the petitioners were wrongly rejected could not affect the result of the election as the respondent had won by 711 votes. I therefore held that the petitioner had failed to make out a case for recounting the ballot papers and dismissed the election petition.
11. In consequence of the order of remand the ballot papers were sent for from the District Election Officer Nagaur and after notice to the parties they were opened in their presence on 23-8-68. Recounting was done in my court room under the supervision of the Registrar by 5 officers of the High Court. After the ballot papers of a polling station were counted the objections made by the parties with regard to them were heard by me. With regard to many ballot papers it was contended on behalf of respondent No. 1 that they were tampered with after the declaration of the result. Decision with regard to these ballot papers was postponed. Other objections regarding the validity of the ballot papers were decided at the time they were made.
12. After I had examined all the ballot papers with regard to which it was contended that they were tampered with after the declaration of the result I heard the parties again and proceed to give my decision.
13. Twenty-eight bundles containing 50 ballot papers each were found in the bundles of valid ballot papers of the respondent, almost all of which bear seal marks both in the compartments of the respondent and the petitioner. They were counted for the respondent as valid votes. The serial numbers and the names of the polling stations as well as the number of ballot papers contained in the bundles together with the number of double marked ballot papers in each bundle are given below:
S. No of polling Name of polling Total number of Number of ballot
station station ballot papers in papers double
bundle marked
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1 2 3 4----------------------------------------------------------------------------
*. Harsolav I 50 41 4. Nokha 50 50 8. Gotan I 50 50 50 50 9. Gotan II 50 49 50 50 11. Toonkaliya 50 50 12. Lambajatan 50 50 50 50 13. Oladan 50 50 50 49 14. Chhapri Khurd 50 43 19. Phalodi III (Merta Road) 50 50 22. Pundlu 50 50 26. Mokala II 50 50 27. Gagrana I 50 50 50 50 29. Bitan 50 50 32. Kurdaya II 50 50 50 50 40. Merta II 50 49 42. Merta IV 50 47 47. Datani 50 50 50. Ren II 50 50 53. Dhandlas Udan 50 50 54. Netariya 50 50 81. Riyan Badi IV 50 50 83. Biiathal 50 4814. An examination of these 1376 double marked ballot papers leads to the conclusion that the seal marks in the petitioners' compartment on them were affixed after the declaration of the result. The reasons for coming to this conclusion are given below.
15. There were only two contesting candidates in this election the petitioner and the respondent. The ballot paper was divided into two compartmentsone bearing the name and symbol of the respondent and the other bearing the name and the symbol of the petitioner. These compartments were horizontal. According to the instructions, each ballot paper should be folded vertically before being supplied to the voter. The elector records his vote by stamping a mark on the ballot paper by means of a rubber seal. This mark is a cross in a circle like this. The straight lines of the cross are perpendicular to one another. The rubber portion of the seal is affixed to a wooden rod with a square cross-section. The side of this square is of the same length as the diameter of the circle. The rubber part of the seal is inked by an elector by pressing it on an inkpad and then a seal mark is put with it in the compartment of the candidate for whom the elector wants to vote. After putting the mark the elector has to fold the ballot paper and put it in the ballot box through a slit. This slit is not so big as to allow an unfolded ballot paper to pass through it.
16. No blotting paper is provided to an elector. It there is excess of ink on the rubber seal then the seal mark does not dry up and when the ballot paper is folded the seal mark stamped by the elector leaves a print on the face of the ballot paper.
17. To avoid confusion I have referred to an impression caused by the rubber seal as "seal mark" and an impression caused by this seal mark by coming into contact with paper while wet as a "print."
18. If the ballot paper is folded vertically in accordance with the instructions then the seal mark and the print are in the compartment of the same candidate and there is not doubt for whom the elector has marked the ballot paper. If however the elector folds the ballot paper horizontally then the seal mark in the compartment of one candidate leaves a print in the compartment of the other candidate. Such ballot papers bearing marks in both the compartments are to be treated as doubtful ballot papers by the counting supervisors and it is the Returning Officer who decides which compartment bears the original seal mark and which compartment bears the print of it caused by folding it while wet.
19. It will thus be seen that the print of a seal mark of one ballot paper cannot come on the back of another ballot paper if these seal marks are put during the course of voting because each ballot paper is folded separately by the voter and put in the ballot box.
20. An examination of these double marked ballot papers goes to show that whereas many of the ballot papers in several polling stations bear a print of the seal mark made by the voter in the respondent's compartment, none of them bears a print of any seal mark in the petitioner's compartment. If the same voter had put the seal mark in both the compartments such a thing could not have happened. There was either excessive ink on the inkpads in these polling stations or the voter who made a seal mark containing excessive ink in the respondent's compartment pressed the seal on the inkpad with too much pressure so as to get excess of ink on the seal. If the same voter had made a seal mark in the petitioners compartment he would do the same in most cases and there would have been prints of seal mark made in the compartment of the petitioner also on several of these ballot papers. This shows that the seal marks in the two compartments were not made by the same person at the same time. Learned Counsel for the petitioner was unable to explain why none of the seal marks in the petitioner's compartment left a print on folding the ballot paper.
21. Most of the seal marks in the petitioner's compartment have just sufficient ink to leave a full seal mark and no excess ink to leave a print. A few of the seal marks put in the petitioner's compartment had excessive ink but the print of these seal marks appeared not on the face of the same ballot paper as it would have appeared if this seal mark was made in the polling booth at the time of polling but the print of these seal marks was caused on the back of the ballot paper immediately above it in the bundle. These tell tale prints go to show conclusively that these seal marks in the petitioner's compartment were made when these ballot papers were in bundles of 50. In other words they prove that the ballot papers were tampered with after the declaration of the result and the valid ballot papers of the respondent were sought to be made invalid by making seal marks in the compartment of the petitioner. For these impressions caused by the seal marks in the petitioner's compartment on the ballot papers above them cannot be explained on the basis of any other hypothesis.
22. The only explanation which the learned Counsel for the petitioner was able to put forward was this. He said that voters must have placed these ballot papers with their face upwards one over the other on the ballot box instead of folding them and putting them inside the ballot box. This explanation is not tenable. The ballot box is now kept outside the voting compartment in full view of the Presiding Officer and it is the duty of the Presiding Officer and the Polling Officer to see that the voter folds the ballot paper and puts it in the ballot box before leaving the polling station vide Instructions to Presiding Officer for the General Election, 1967 issued by the Election Commissioner.
23. There is another circumstance which also goes to show that the seal marks in the petitioner's compartment were stamped when these ballot papers were in bundles of 50. These seal marks appear to have been put one after another in quick succession because the seal marks in the petitioner's compartment in batches of ballot papers are at one angle and are similar to one another and leave a definite impression in the mind that they have been affixed at one time by the same person by holding the seal at the same angle.
24. A voter usually holds the seal in his hand at one angle and if he makes several marks with it, the angle of the cross will usually remain the same. There are however several ballot papers in which the angle of the cross in the seal marks in the two compartments in the same ballot paper is quite different.
25. There are many ballot papers on which the voter was not able to get full impression of the seal in the respondent's compartment even after several attempts. Obviously the voter who affixed these seal marks had an unsteady hand. The seal marks on the same ballot papers which are in the petitioner's compartment are however clear and had been made in one attempt which shows that the person who put the seal marks had a steady hand. This again shows that the seal marks in the two compartments were made by different persons.
26. The seal marks in the petitioner's compartment on the ballot papers in each bundle are mostly similar to one another and dissimilar to seal marks on same ballot papers in the respondent's compartment. The seal marks in the petitioners compartment are generally more perfect then the seal marks in the respondent's compartment.
27. In other words the seal marks in the compartment of the respondent have been affixed in quite a different manner on most ballot paper's. This would not have been so if the same voter had affixed the seal marks in both compartments.
28. I have got the ballot papers in the above mentioned bundles sewn together as found in the envelopes, so that the respective places of the ballot paper one over the other may not be disturbed and it may be possible to appreciate the force of the above arguments quits easily by a mere perusal of these bundles.
29. I now proceed to deal with the ballot papers of the above polling stations in greater detail.
Polling Station No. 1 Harsolav I
(a)In one bundle of 50 ballot papers the top ballot paper No. 000499 is marked for the respondent only. The next 8 ballot papers bear marks in the compartment of the respondent which appear to have been made with the wooden end of the seal. The Supervision and the Returning Officer appears to have treated these marks as valid because in one sense they are made by the instrument which is provided to the voter. As however it is some times difficult to distinguish such a mark from a smudge caused otherwise learned Counsel for the parties agreed before the commencement of the counting that such marks will not be counted as valid. All these 8 ballot papers have seal marks in the compartment of the petitioner which appear to have been put after the declaration of the result. The first 7 out of these 8 ballot papers have seal marks in the petitioner's compartment at the same angle and similar to one another.
(b) Batches of these seal marks in the petitioner's compartment are at the same angle. The following consecutive ballot papers are noteworthy:
000030 000309 There is an identical triangular mark outside the seal in the petitioner's compartment on both these ballot papers. The seal mark in the respondent's compartment on these two ballot papers is quite different.
000058 000288
(c) The seal marks in the petitioner's compartment are identical. The angle of the seal is quite different from the angle of the seal in the respondents compartment.
(d) The seal marks in the respondents compartment have left prints in 38 out of 50 ballot papers. Not a single ballot paper bears a print of the seal mark made in the petitioner's compartment. Fortytwo out of the 50 ballot papers in this bundle are valid votes for the respondent.
Polling Station No. 4 Nokha 30 (a) The seal marks in the petitioner's compartment are almost similar to one another and dissimilar from the seal mark in the respondents compartment on the same ballot paper. The first 8 seal marks in the petitioner's compartment are at one angle. The next 10 are at another angle. The next 21 are a third angle and the next 11 are at a fourth angle.
(b) Ballot papers No. 002966 deserves special mention. The voter was unable to impress a whole seal mark in the respondent's compartment obviously because he had an unsteady hand. The seal mark in the petitioner's compartment had been put by a different person who had a steady hand.
Polling Station No. 8 Gotan I 31 (a) There are two bundles of 50 ballot papers each which are double marked. I first take up the bundle the top ballot paper of which bears No. 006426. In this bundle 34 ballot papers have prints of the seal marks in the respondent's compartment, but none has any print of the seal mark in the petitioner's compartment on all these ballot papers are similar to one another and different from the seal marks in the respondent's compartment on most of the ballot papers.
(b) The following consecutive ballot papers deserve special mention. Some fibre has stuck to the seal with which the mark was made in the petitioner's compartment. The seal marks in the respondent's compartment are different:
First Set : 006517, 006385 Second Set: 006491, 006504 Third Set : 006548, 006528, 006526 The following sets of consecutive ballot papers also deserve mention as the seal marks in the petitioner's compartment are identical to one another, but dissimilar from the seal marks in the respondent's compartment:
First Set : 006360, 006485 Second Set: 006542, 006456
(c) The mark in the respondent's compartment on ballot paper No. 006542 was made by a voter who had an unsteady hand, whereas the mark on the same ballot paper was made in the petitioner's compartment by a person with a steady hand.
(d) The top ballot paper of the second double marked bundle is No. 006691. Very few of the seal marks in the respondent's compartment have left a print. It appears that excess ink of the inkpad in the polling booth had been used and the inkpads had become drier when these ballot papers were marked by the voters. The seal marks in the petitioner's compartment are similar to one another and dissimilar to the seal marks in the respondent's compartment on the same ballot papers.
(e) The seal marks in the petitioner's compartment on the following 7 consecutive ballot papers are at the same angle:
006737, 006783, 006580, 006925, 006824, 006818, 006874 The seal marks in the petitioner's compartment on 17 consecutive ballot papers from No. 006741 to 006703 are at one angle.
(f) The seal marks in the petitioner's compartment on 19 ballot papers from No. 006884 to the end of the bundle are at one angle.
Polling Station No. 9 Gotan II 32 (a) Two bundles of double marked ballot papers were found. I first take up the bundle the top ballot paper of which is No. 007806. In this bundle the last ballot paper No. 007802 has seal mark only in the compartment of the respondent. The other 49 have double seal marks.
(b) 45 of these ballot papers have prints of the seal mark in the respondent's compartment, but none has any print of a seal mark in the petitioner's compartment.
(c) On ballot paper No. 007820 the voter could not get the impression of the whole seal in the respondent's compartment despite several attempts obviously because he had an unsteady hand. The seal mark in the petitioner's compartment has been made by a person with a steady hand.
(d) In the first 11 and the last 33 of the double marked ballot papers the lines of the cross in the seal mark in the petitioner's compartment have the same angle. They are inclined at about 45 degrees. The intervening 5 ballot papers have the seal marks in the petitioner's compartment the lines of the cross of which are inclined slightly from the vertical and horizontal. The seal marks in the petitioner's compartment are mostly similar to one another and different form the seal marks in the respondent's compartment on most ballot papers.
(e) The other bundle of 50 ballot papers has all double marked ballot papers. Twelve of the seal marks in the petitioner's compartment in this bundle have left prints on the back of the ballot papers immediately above them. They are as follows:
Ballot paper number Ballot paper number the seal of which on the back of which has left a print the print appears
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007550 007566
007503 007550
007561 007356
007582 007561
007537 007542
007608 007430
007589 007608
007395 007396
007543 007317
007552 007574
007347 007610
The angles of the seals marks in the petitioner's compartment (which are similar to one another and dissimilar to the seal marks on the same ballot papers in the respondents compartment in most cases) are at one angle in the following batches of ballot papers: First 4, Next 17, Next 5, Next 10, Next 7, Next 7 Polling Station No. 11 Toonkaliva
33 (a) There is one bundle of double marked ballot papers. Twenty-five out of these ballot papers have prints of the seal marks made in the respondent's compartment, but none has any print of a seal mark made in the petitioner's compartment on the face of the ballot paper. One seal mark made in the petitioner's compartment on ballot paper No-009518 has left a print on the back of the ballot paper immediately above it the number of which is 009345, Ballot paper No. 009518 was folded horizontally and the print of the seal mark in the petitioner's compartment. If the seal mark in the petitioner's compartment had been made by the same voter in the polling booth the print of it would have appeared on folding on the face of the ballot paper and not one the back of the ballot paper above it in the bundle.
(b) The seal marks in the petitioner's compartment on the following batches of consecutive ballot papers are identical but different from the seal marks in the respondent's compartment on the same ballot papers.
Fisrt batch : 009594, 009312, 009593, 009414, 009317 The seal marks in the petitioner's compartment are not at the same angle on all the above ballot papers. But there is something sticking to the seal which has caused a triangular mark outside the circle in the seal mark in the petitioner's compartment. The seal marks in the respondent's compartment are not similar to the seal marks in the petitioner's compartment.
Second batch : 009345, 009518, 009596, 009522, 009647, 009597, 009364, 009369 Third batch : 009595, 009648, 009408, 009286, 009349, 009289 Fourth batch : 009314, 009290, 009379, 009374, 009616, 009416 Fifth batch : 009618, 009288, 009321, 009599 In this batch of the ballot papers again there is a triangular mark outside the seal mark in the petitioner's compartment. There is no such triangular mark in the seal mark in the respondent's compartment on the same ballot papers.
Polling Station No. 12 Lambajatan 34 (a) There are two bundles of double marked ballot papers. I first take up the bundle the top ballot paper of which is No. 010598. Twenty-six but of these ballot papers have prints of the seal marks made by the voters in the respondent's compartment, but none has any print of any seal mark made in the petitioner's compartment. The seal marks in the petitioner's compartment are similar to one another on almost all the ballot papers and are dissimilar to the seal marks made in respondents compartment. The following ballot papers may be specially perused in this connection 010598, 010504, 010749, 010736, 010611, 010548, 010629, 010402, 010297, 010626, 010537 The second bundle the top ballot paper of which is No. 010631 has similar seal marks in the petitioner's compartment. They are dissimilar to the seal marks in the respondent's compartment The following ballot paper deserve special mention in this connection:
010638, 010847, 010740, 010623, 010342, 010286, 010840, 010460, 010263, 010392, 010546.
The angle of the cross lines in the seal marks in the petitioner's compartment on the first 10 ballot paders is almost at 45 degrees, the next 3 ballot papers have differents angles, but the next 13 are again at 45 degrees. On the remaining 24 ballot pepers the seal marks in the petitioner's compartment are almost at the same angle.
Polling Station No. 13 Oladan
35. (a) There are two double marked bundles in this polling station. I first take up the bundle the top ballot paper of which is No. 011905. All the ballot papers in this bundle are double marked. The seal marks in the petitioner's compartment are similar to one another. Most of them are practically at the same angle. These seal marks are different from the seal marks in the compartment of the respondent on the same ballot papers. The following ballot papers may be specially mentioned in this connection:
011905, 011962, 011668, 011678, 011934, 011946, 011935, 011904, 011884, 011838, 011889, 011868, 011936, 011886.
In the other bundle 49 out of 50 ballot papers are double marked. The top ballot paper of this bundle is No. 011760. The seal marks in the petitioner's compartment are similar to one another and are different from the seal marks in the respondent's compartment. The following ballot papers may be specially mentioned in this connection:
011497,011593.
(b) In these two ballot papers the seal mark in the petitioner's compartment shows that some fibre was sticking to the seal. They are consecutive ballot papers. The seal mark in the respondent's compartment is different from the seal mark in the petitioner's compartment.
(c) The following ballot papers may also be mentioned a perusal of which leaves no doubt that the seal marks in the two compartments were made by different persons 011716,011473,011717,011734,011685,011743,011708 Polling Station No. 14 Chhapri Khurd
36. This contains one bundle in which the first 7 ballot papers bear seal mark in the compartment of the respondent only. The remaining 43 ballot papers bear seal marks in both the compartments. The seal marks in the petitioner's compartment are similar to one another, although all of them are not at the same angle. They differ from the seal mark in the respondent's compartment on the same ballot papers. The following ballot papers deserve special mention in this connection:
012983, 012757, 012436, 012771, 012684, 012737, 012696, 012751, 012986, 012738, 012754, 012741, 012721 The seal mark in the petitioner's compartment on ballot paper No. 012515 has left a faint print on the back of the ballot paper immediately above it the number of which is No. 012741. Even though the print is faint the out lines of the seal can be seen.
Polling Station No. 19 Phalodi III (Merta Road).
37. (a) One bundle bears 4puble mark on all the 50 ballot papers. The top ballot paper is No. 016779. 46 of these ballot papers have prints of the seal mark made by the voters in the respondent's compartment. None has print of the seal mark made in the petitioner's compartment. The seal marks made in the petitioner's compartment are similar to one another and dissimilar to most of the seal marks on the same ballot papers in the respondent's compartment. The angle of the seal marks in the petitioner's compartment on batches of ballot paper are the same.
(b) In the following ballot papers the voter Could not impress the full mark of the seal in the respondent's compartment despite several attempts showing that he had an unsteady hand:
017197, 016836, 017273
(c) The seal marks in the petitioner's compartment of these 3 ballot papers are full and clear and were made by a different person having a steady hand.
Polling Station No. 22 Pundlu
38. (a) All the ballot papers in one bundle have been double marked. The number of the top ballot paper is No. 020547. All the seal marks in the petitioner's compartment are similar to one another. Angles of these seal marks are the same in batches of ballot papers. Whereas 34 of the ballot paper have prints of the seal mark made by the voter in the 'respondent's compartment the seal marks in the petitioner's compartment have just sufficient ink except in one case where print of the seal mark in the petitioner's compartment of ballot paper No. 020403 was caused on the back of the ballot paper immediately above it bearing N. 020407
(b) The seal marks in the compartment of the respondent are dissimilar to the seal marks in the compartment of the petitioner. Despite several attempts the voters could not impress the full seal mark in the respondent's compartment on the following ballot papers:
020547, 020478, 020063, 020413, 020490, 020492, 020412, 020565 The seal marks on these ballot papers in the petitioner's compartment are full and were made by a person with a steady hand in one attempt.
Polling Station No. 26 Mokala II
39. (a) In one bundle the top ballot paper of which is No. 023412 all the 50 ballot papers bear seal marks in both the compartments. 42 ballot papers have prints of the seal marks made by the voters in the respondent's column, but none has a print on the face of the ballot paper of any seal mark in the petitioner's compartment. There appears to be a print of the seal mark in the petitioner's compartment on ballot-paper No. 023649 on the back of the ballot paper above it which bears No. 023799
(b) All the seal marks in the petitioner's compartment are similar to one another. Batches of them are at the same angle. They are dissimilar to the seal mark in the respondent's compartment on the same ballot papers in most cases. The following ballot papers deserve special mention:
023341 The seal mark in the petitioner's compartment has a triangular mark outside the circle in this ballot paper. There is no such mark in the seal in the respondent's compartment.
023545, 023519, 023471 The seal marks in the petitioner's compartment are identical, but the seal marks in the respondent's compartment are different from them.
023344, 023738 The voter who put the seal mark in the respondent's compartment had an unsteady hand. The person who put the seal marks on same ballot papers in the petitioner's compartment had a steady hand.
Polling Station No. 27 Gagrana I
40. (a) All the ballot papers of two bundles are double marked. I first take up the bundle the top ballot paper of which is No. 024450. The seal marks in the petitioner's compartment on all these ballot papers are; similar 'to one another and dissimilar to the seal mark in the respondent's' compartment on the same ballot papers. The voters who put the seal marks in the respondent's compartment on the following' ballot papers had an unsteady hand; but the person who put the seal marks in the petitioner's compartment on the same ballot papers had a steady hand:
024450, 024278, 024427, 024222,024407,024506, 024545, 024299, 024521, 024307 Twenty-six of these ballot papers have prints of the seal mark made by the voter in the respondent's compartment on the face of the ballot paper. None of the seal marks made in the petitioner's compartment has left any print on the face of the ballot paper. On the other hand the prints of 5 seal marks in the petitioner's compartment appear on the back of the ballot papers immediately above them in the bundle:
Print of No. 024256 is on back of No. 024369 " " 024311 " " " " 024299 " " 024531 " " " " 024516 " " 024436 " " " " 024239 " " 024446 " " " " 024427
(b) The top ballot paper of the other double marked bundle bears No. 024467. The seal marks in the petitioner's compartment in this bundle also are similar to one another and dissimilar to the seal marks in the respondent's compartment. The following ballot papers deserve special mention:
024219, 024325, 024308, 024568, 024575, 024386, 024321, 024429 The voters who put the seal marks in the respondent's compartment had an unsteady hand and could not impress the full seal mark despite several attempts. The seal mark in the petitioner's compartment on the same ballot papers are full and clear and were made in one attempt.
Polling Station No. 29 Bitan
41. One double marked bundle was found the top ballot paper of which is No. 026179. Only 8 or 9 ballot papers have prints of the mark made by the voter in the respondent's compartment. 8 or 9 ballot papers have partial seal marks in the petitioner's compartment. The seal mark in the petitioner's compartment, which are full, are however similar to one another. On the following ballot papers the voter who put the seal mark in the respondent's compartment was unable to impress the full seal mark despite several attempts. On the same ballot papers the seal mark in the petitioner's compartment is clear and full and was made in one attempt:
026339, 026345, 026234 Polling Station No. 32 Kurdava II
42. (a) Two bundles of double mark ballot papers were found. I first take up the bundle the top ballot paper of which bears No. 028355. No ballot paper bears any print. The seal marks in neither compartment are bright. All the seal marks in the petitioner's compartment are practically at the same angle. The seal marks in the respondent's compartment are at different angles in many of these ballot papers. The following ballot papers may be specially mentioned:
028355, 028555, 028358, 028348, 028596, 028572, 028585, On ballot papers No. 028537 and 028460 the voter could not make a full impression of the seal in the respomdent's Compartment despite several attempts which shows that his hand was unsteady, The seal marks in the petitioner's compartment on the same ballot papers are clear and were made by a person having a steady hand.
(b) The top ballot paper of the other bundle bears No. 028561. The seal marks in the petitioner's compartment on these ballot papers are similar. The first 26 ballot papers upto No. 028330 bear seal mark in the petitioner's compartment at one angle. After that one ballot paper No. 028260 bears two seal marks in the petitioner's compartment-the cross lines of which are at 45 degrees.
The next ballot paper No. 028470 bears two seal marks with cross lines at two different angles. The remaining 221 ballot papers from No. 028549 bear seal marks in the petitioner's compartment's the cross lines of which are again at 45 degrees. The angles of the cross lines of the seal-marks in the respondent's compartment are different in most of these ballot papers. The following ballot papers may be mentioned in this connections:
028561, 028291, 028335, 028224, 028295, 028330 028530, 028235, 028403, On ballot papers No. 028379 and 028473 the voter could not impress a full seal work despite several attempts in the compartment of the respondent. The seal in the petitioner's compartment on both these ballot papers were made by a person with a steady hand in one attempt Polling Station No. 40 Merta II,
43. (a) One bundle of 50 ballot papers the top ballot paper of which is No. 035421 contains 49 double marked bollot papers. Ballot paper No. 035756 in the middle only bears a seal mark in the respondents compartment.
(b) All the seal marks an the petitioner's compartment are similar to one another and batches of them are at the same angle. On ballot papers No. 035519, 035463 and 035852 the voter who put the seal mark in the respondent's compartment had an unsteady hand could not make the, full impression of the seal. The seal marks in the petitioner's compartment on the same ballot papers have been made by a person with a steady, hand, who was able to impress the full mark of the seal in one attempt.
(c) 14 of the ballot papers in this bundle bear prints of the seal marks made by the voter in the respondent's compartment. None of them bear any print of any marks made in the petitioner's compartment.
Polling Station No. 42 Merta IV
44. 47 ballot papers out of a bundle of 50 the top ballot paper of which bears No. 038115 contain seal marks in both the compartments. Ballot papers No. 038115 and, No. 038504 bear seal marks in the respondent's compartment and its print in the petitioner's compartment. They are valid votes for the respondent. Ballot paper No. 038225 bears seal mark only in the respondent's compartment. The remaining 47 ballot papers bear seal marks in both the compartments. On batches of ballot papers the seal marks in the petitioner's compartment are similar to one another and different from the seal marks in the respondent's compartment. The following batches of ballot papers may be mentioned:
First batch : 038105, 038270, 038064, 038094, 038075 The seal mark in the respondent's. compartment is full, and that in the petitioner's compartment is partial. But these partial seal marks are similar to one another and appear to have been made at one time by one person and not by the voters who put the seal mark in the respondent's compartment on these ballot papers.
Secound batch : 038507, 038452, 038385 On these ballot papers also the seal marks in the respondent's compartment are full but those in the petitioner's compartment are partial. But at the same time they are exactly similar to one another.
Third Batch: 038109, 038110.
The seal marks in both the compartments are partial, but the seal marks in the petitioner's compartment are similar to one another and different from the seal marks in the respondent's compartment on the same ballot papers.
Fourth batch : 038205, 037752, 038434;,038330, 033512.
In the seal mark in the petitioner's compartment a triangular mark appears outside the circle. The seal marks in the respondent's compartment are dissimilar.
(b) The learned Counsel for the respondent pointed out a mark on the back of ballot paper No. 038317 which according to him is a print of the seal mark in the petitioner's compartment on ballot papers No. 037823 immediately below it. A mark is there but the outline of the seal is not visible. It cannot be said with certainty that it is a print of the seal mark in the petitioners' compartment. It may be a smudge caused in some other way.
Polling Station No. 47 Datani
45. One bundle of 50 ballot papers is double marked. The ink of the polling station with which seal marks were made is the compartment of the respondent appears to be thicker than the ink with which the seal marks were made in the petitioner's compartment. This is particularly noticeable on a perusal of the following ballot papers:
043148, 042178, 043126, 042808 The seal marks in the respondent's compartment on the following ballot papers were made by a voter with an unsteady hand. The seal marks on the same ballot papers in the petitioner's compartment were made by a person with a steady hand:
043148, 042830, 043155, 043156 The seal mark in the petitioner's compartment on ballot paper No. 043122 left impression on the back of the ballot paper an immediately above it bearing No.043098. Polling Station No. 50 Ren II
46. One bundle of 50 ballot papers the top ballot paper of which bears No. 045744 contains seals marks in both the compartments. The seal marks in the compartment of the respondent have left prints an most of these ballot papers. None of the seal marks in the petitioner's compartment have left any print. Batches of the seal marks in the petitioner's compartment are similar to one another. The seal marks in the respondent's compartment on most of these ballot papers are dissimilar to the seal marks in the petitioner's compartment on the same ballot papers. The following two ballot papers may be mentioned in particular:
045339, 045725 Polling Station No. 53 Dhandalal Udan
47. One bundle of 50 ballot papers the top ballot paper of which is No. 049148 bears seal marks in both the compartments. Most of these ballot papers have prints of the respondent's seal mark on them. None of the them has any print of theseal mark in the petitioner's compartment. The following ballot papers may be mentioned. The voter who put the seal mark in the respondent's compartment had an unsteady hand but the person who put the seal mark in the petitioner's compartment on the same ballot papers had a ready hand.
049148, 048957, 048832, 048835, 049052, 049141, 049041, 048886 048823, 048842 Polling Station No. 54 Natariya
48. (a) In the ballot paper account of this polling station the Presiding Officer entered the serial mumbers of the ballot papars used in the election to Parliament instead of giving the serial numbers of the ballot papers used for election to the Assemebly. The ballot papers actually used however are pink in colour and all bear the official seal containing the number of the constituency and the number of the polling station. The poll was thus valid.
(b) One bundle of 50 top ballot papers of which bears No. 050086 bears seal marks in both the compartments. About 20 of these ballot papers bear prints of the seal mark in the respondent's compartment. None of them has any seal mark in the petitioner's compartment.
(c) The seal marks in the petitioner's compartment on all the ballot papers except No. 050027 are single and are similar to one another. Batches of these similar seal marks are at the same angle. The seal marks on must of the ballot papers in the respondent's compartment are dissimilar to these marks in the petitioners' compartment. The following ballot papers may be specially mentioned in this connection:
050038, 049795, 050052, 049826, 050032, 049949, 050035, 050042, 050014, 049776, 049613, 049643, 050059 Polling Station No. 81 Rivan Badi IV
49. (a) In the packets of rejected ballot papers a slip was found bearing "D27" In the packet of the valid votes of respondent another slip was found bearing "Swatantra 379". In the packet containing valid votes of the petitioner a slip was found bearing "Congress 118". According to the evidence on record some supervisors noted down the numbers of total ballot papers contained in each packet on separate slips. It was not disputed by the parties that these 3 slips must have been written by the counting supervisor. One bundle the top ballot paper of which is No. 073462 containing 50 ballot papers bearing seal marks in both the compartments was found in the packet containing the valid votes of the respondent. Including this bundle the total valid votes of the respondent come to 379. An examination of the ballot papers of this bundle goes to show that the seal marks in the petitioner's compartment were made after the declaration of the result.
(b)There is a print of the seal mark in the petitioner's compartment on ballot paper No. 073441. The left side of the seal mark is thicker, but the print of of the ballot paper must have soaked the ink. There is no doubt that the print of the seal mark in the petitioner's compartment on the above ballot paper appears on the back of the ballot paper immediately above it.
(c) About 17 of the seal marks in the respondent's compartment have left prints on the face of the ballot papers, but none of the seal marks in the petitioner's compartment has left a print on the face of the same ballot papers.
(d) All the seal marks in the petitioner's compartment are similar to another and batches of them are at the same angle. Most of them are dissimilar to the seal marks in the respondent's compartment on the same ballot papers. The following ballot papers may be mentioned in particular:
073298, 073456, 073151, 073431, 073378, 073438, 073113, 073308, 073120 The discovery of the the three slips written by the supervisor further goes to show that this bundle of 50 ballot papers contains valid votes of the respondent and was counted by the supervisor as such. Only 27 ballot papers were rejected by the Returning Office also. The number of the respondent's votes according to the result sheet is 349. This number includes the 50 ballot papers contained in this bundle which was double marked after the declaration the result.
Polling Station No. 83 Bijathal
50. (a) One bundle of 50 the top ballot paper of which bears No. 075291 contains 48 ballot paper which have seal marks in the compartments of both the candidates. The second ballot paper No. 075241 bears a seal mark in the respondent's compartment and its print in the petitioner's compartment. It is a valid vote for the respondent. Another ballot paper No. 075420 has no seal mark in the respondent's compartment. It has two marks in the petitioner's compartment one of which is admitted a seal mark. The other is the print of this seal mark. It is a valid vote for the petitioner.
(b) The seal make in the petitioner's compartment on the remaining 48 ballot papers are similar to one another and dissimilar to the seal mark in the respondent's compartment on the same ballot papers in most cases. This becomes clearer when seal marks on consecutive ballot papers are seen and compared.
(c) The seal marks on 48 ballot papers in the petitioner's compartment are different from the seal mark on ballot paper No. 075420 on which the seal mark was impressed in the polling booth in the ordinary course.
(d) The ballot papers were folded horizontally when bundles were formed. The top ballot paper No. 075291 bears a seal mark both in the compartment of the petitioner as well as in that of the respondent. The seal mark in the petitioner's compartment has left a print in the respondent's compartment. This seal mark was evidently put after the declaration of the result end the ballot papers of the bundle were folded and tied with a rubber bard before seal mark in the petitioner's compartment was quite dry. So this has lefta print in the respondent's compartment. No inference in favour of the petitioner can be drawn from this print.
(e) This seal marks on the 48 ballot papers in the petitioner's compartment were evidently put after the declaration of the result.
51. From the examination of the ballot papers of the above 28 bundles which were counted as valid votes for the respondent it is clear that with the exception of 8 ballot papers in Harsolay I (No. 1) and 1 in Bijathal (No. 83) they are all valid votes for the respondent and were rightly counted for him. With the exception of a single ballot paper in Bijathal the seal marks on them in the petitioner's compartment were made after the declaration of the result.
52. So far as the remaining ballot papers are concerned the results of the 1 recount does not materially effect the result of the election as the respondent had a 1 lead of 711 votes over the petitioner according to the official return. 14 ballot papers validly marked for the petitioner were found in a bundle of valid Votes' of the, respondent in Kanwariyat (polling Station No. 77). They were, wrongly counted for the respondent. Twenty ballot papers marked for the petitioner were found in a bundle of valid votes of the respondent in Riyan Badi III (polling station No. 80) One bundle of 50 ballot paper marked for the petitioner was found amongst the bundles of valid votes of the respondent in Rohisi Polling Station (No. 82) These were also counted as valid votes for the respondent.
53. There was one bundle of 56 ballot papers amongst the bundles of the respondent's valid votes in Riyan Badi III (Polling Station No. 80). These 56 ballot papers were however not counted for the respondent. Only 34: ballot papers bearing the order of rejection by the Returning Officer were found in this polling station, where as the number of rejected ballot papers according to the official return was 80. On the back of ballot paper No. 072233 the figure "D-80" is written. According to both parties this must have been written by the counting supervisor and shows that 80 ballot papers were treated as doubtful by him. The theory put forward on behalf of the respondent is that 20 out of the 80 doubtful ballot papers must have been blank and as no rejection orders were passed on them at the time of counting they were inserted in a boundle of the valid votes of the respondent and 20 ballot papers validly marked for the respondent were double marked and mixed with the remaining 36 doubtful ballot papers. It is pointed out that the seal marks in the petitioner's compartment on these 20 ballot papers out of the 56 are more or less similar. This is no doubt a suspicious circumstances.
54. With regard to Rohisi the respondent put forward the theory that 50 of the doubtful ballot papers must have been blank on which no order of rejection was passed as was done in the case of 56 ballot papers in Riyan Badi III and these 50 ballot papers must have been marked with seal mark in the pensioner's compartment. On the back of the ballot paper No. 074267 found in this bundle of 50 ballot papers marked for the petitioner the figure D-90 is written in red pencil. This must have been obviously written by the supervisor. That shows that 90 ballot papers were treated as doubtful by him. 90 ballot papers bear orders of rejection by the Returning Officer. This case is therefore different from Riyan Badi III. There are however two circumstances which arouse suspicion, On is that it has not been explained how a ballot paper treated as doubtful was pat in this bundle, if it was a bundle of 50 ballot papers counted as valid for the petitioner. The petitioners votes according to the billot paper account were 387. Actually 388 were found. There must have been seven bundles of 50 each and one bundle of 37 or 38 ballot papers in his packet of valid votes and if any doubtful ballot paper was treated as valid by the Returning Officer it would have gone to the odd bundle or 37 or 38 ballot papers. The other circumstance is that ballot papers bear the print of the seal mark in the petitioner's compartment on the back of the ballot paper immediately above it in the bundle which shows that these 3 seal marks were not put at the time of the poll but were put after the declaration of the result when the ballot papers were tampered with. The details are as follws:
Print of No. 074464 on back of No. 074627 " " 074251 " " " 073826 " " 074409 " " " 074135 It was not mentioned in application Ex. 3 filed by the petitioner after counting was over that any bundle of valied ballot papers of the petitioner was counted for the respondent. A mention about it was however made in the election petition. There is some force in the respondent's argument that this 'discovery" could only have been made when the ballot papers were tampered with.
55. In Suriyas (polling Station No. 71) one bundle containing 49 ballot papers was found in the bundle of valid votes of the petitioner and was counted for him. According to the petitioner this was a bundle of doubtful votes which inadvertently got mixed up with the bundles of valid votes of the petitioner and was wrongly counted for him. According to the respondent this bundle was also tampered with after the declaration of the result. The top ballot paper of this bundle No. 064516 bears a seal mark in the petitioner's compartment and its print in the respondent's compartment. The second ballot paper No. 064505 bears seal mark in the petitioner's compartment only. The next six ballot papers bear seal marks in the petitioner's compartment and their prints in the respondent's compartment. One more ballot paper in the bundle bearing No. 064382 bears a seal mark in the petitioner's compartment and a print in the respondent's compartment. These 9 ballot papers are valid votes for the petitioner. Two ballot papers No. 064496 and 064350 bear seal marks in the compartment of the respondent and their prints in the compartment of the petitioner. They are valid votes for the respondents. The remaining 38 ballot papers out of this bundle bear seal marks in both the compartments. The seal marks in the respondent's compartment on these 38 ballot papers have left a print. But the seal marks made on these ballot papers in the petitioner's compartment have not left any print. There is ground for suspecting that the seal marks in the petitioner's compartment on these 38 ballot papers might have been put after the declaration of the result.
56. During the course of my scrutiny of a ballot papers here and these which have been rejected by the Returning Officer were treated as valid votes for one or the other candidate and ballot papers treated as valid for the respective candidates by him were rejected by me. This did not make any appreciable difference in the result.
57. On behalf of the 'respondent my attention was drawn to a number of rejected ballot papers from different polling stations and it was suggested that seals were affixed on them in the petitioner's compartment after the declaration of the result when the ballot papers were tampered with for different motives. Some ballot papers bearing RNM bear clear seal mark in the petitioner's compartment. It is sufficient to cite one instance of it. In Mokha (No. 414) papers rejected on the ground that they bear no mark still have no mark in the respondent's compartment. Five of them bear one clear seal mark each in the petitioner's compartment and 9 of them bear two seal marks each in the respondent's compartment. If these seal marks had been there it is highly improbable that the Returning Officer would have rejected them. On some ballot papers in which there was too much ink in the seal mark the Returning Officer passed an order in his own hand rejecting them on the ground that they were made by an instrument not provided. On many others he wrote the word "Improper" over his initials. Later on RMN stamp was also affixed, on these ballot papers. Now they bear seal marks in both the compartments. The contention of the respondent is that the seal mark in the petitioner's compartment on many of these ballot papers was put after the declaration of the result to justify their improper rejection. I may here refer to 20 such ballot papers found in Merta (Polling Station No. 41). Most of the seal marks in the respondent's compartment had too much ink and have left a print. None of the seal marks in the petitioner's compartment on these 20 ballot papers has left any print. Further, these 20 seal marks in the petitioner's compartment are similar to one another and are almost at the same angle and appear to have been put by the same person at one time, They are dissimilar to the seal marks in the respondent's compartment on the same ballot paper. There are some ballot which were first rejected by putting the RNM stamp, over the initials of the of the Returning Officer. The have partial seal marks in the respondent's compartment. Now they bear RMM stamp of rejection also. The RNM stamp has been scored, out. Further there are seal marks in the petitioner's compartment also on them. The contention of the respondent is that the seal marks in the petitioner's compartment were put along with RMN stamp after the declaration of the result of justify improper rejection.
58. However as I have said above it is unnecessary to give a decision with regard to all these ballot papers as even if they are accepted as they stand at present the result of the election would not be materially effected in view of my finding above in respect of the 28 bundles counted as valid votes for the respondent.
59. In my previous judgment had recorded a finding on the basis of the evidence produced by the parties before me that there could have been no deliberate inadvertent mixing of the bundles of doubtful ballot papers with the bundles of valid ballot papers of the respondent. After the examination of the ballot papers I way add that in most of the polling stations some unmarked ballot papers were found out of the rejected ballot papers. The above 28 bundles were found in 22 polling stations and in most of these polling station also number of unmarked ballot papers were found in the rejected ballot papers. If these 28 bundles had been bundles of doubtful ballot papers then at least some unmarked ballot papers would have been found in them also. It is however clear from the examination of these 28 bundles that except in the case of one ballot papers seal marks were put in the petitioner's compartment on the ballot papers contained in the tKese,28 bundles after the declaration of the result.
60. The is only intrinsic evidence of tampering in this case. There is extrinic evidence to show that there was an opportunity to tamper with the ballot papers as they were detained Merta upto the evening of 28th February 1967 and neither the respondent nor any of his agents had put his seal or signatures on the envelopes containing the counted ballot papers. Under Rule 92(2) of the Conduct of Election Rules it is the duty of the District Election Officer to keep in his custody the ballot papers after counting is over. Before the counting the ballot paperes in the custody of the Returning Officer to whom they are sent by the Presiding Officers under Rule 97. The Returning Officer should therefore have sent the have papers to the District Election Officer after the counting was over. The respondent made a complaint to the Chief Election Officer Jaipur on 28.2.67 that the apprehended that the ballot papers of Merta Constitutency had been tampered with The Chief Election Officer there upon asked the District Election Officer on telephone to set the ballot papers of Merta Constituancy from the Returning Officer immediately and he sent Shri Tak, Deputy District Development Officer, Nagaur, to bring them. The Retoning Office admitted in his statement at page 180 'I come to know that a complaint was made that the ballot papers had been tampered with when Shri Tak came to me.
Shri Shanti Raj, election agent of the respondent alleged that he requested the Returning Officer to permit him to sign the sealed envelopes after the declaration of the result on 22.2.1967, but the told him that he would's him nexts morning He went on to allege that he saw the Returning Officer several times but he kept putting him off on one excuse or another till 27.2.1967 when he agreed to allow him to sign the envelopes on condition that he antedated his signatures This Shri Shanti Raj ever asked him to put his signatures on the envelops. According to the evidence of Shri Sada Shankerare P.W.3 the ballot papers of I polling station were sealed as soon as their counting and scrutiny was over. Under Rules 57 a candidate or his agent is permitted to affix has seal to the envelope when they are sealed with the seal with the seal of the Returning Officer. The complaint made in writing to the Chief Election Officer by the respondent has not been produced to show that the allegation that a request was made to the Returning Officer by the Agent of the respondent to sign en the envelopes but it was refused was incorporated in it. The allegation made by Shri Shanti Raj in this connection cannot therefore be relied upon.
61. The Returning Officer stated that on 23rd February he was busy with the counting of Degana Constituency and on 24th he went to Nagaur for the counting of the Nagaur Parliamentary constituency as he was as Assistant Returning Officer for that constituency 25th was a local holiday and 26th was Sunday The Returning Officer stated that he remained at Nagaur on 25th and 26th February.
62. The Ballot boxes were stored in a room adjoining the Municipal Hall The Returnining Officer stated that this room was put by him in charee of Shri Daulal, Tehsildar Merta and that the ballot papers were kept after counting in the same room. He further alleged that Shri Daulal had the key of the room and he took permission from h m to remain absent from March on 25th and 26th February which were holidays. The Returning Officer was the Sub Divisional Officer of Merta. The Ballot boxes as well as the ballot papers after they had been counted were really in the custody of the Returning Officer who was responsible for their safe custody till he had deblived them to the District Election Officer. If he put his Tehsilder in Charge of the ballot papers that was an intermal arrangement between him and his Tehsildar. If the Returning Officer him self wanted access to the ballot papers or wanted some one else to have access to them his Tehaildar would not have denied it. The Tehsidar would act under the same motive as the Returning Officer.
63. Towards the close of the argument the Returning Officer filed a certified copy of a radio message which was sent by the Chief Election Officer to the District Election Officers on 25-2-6 drawing their attention to Rule 92 and asking them to immediately ensure compliance personally and send report. This wireless message must have been received by the District Election Officer Nagaur on 25.2.67 when Shri S.D. Arya, Returning Officer, Merta was still here. He did not appear to have taken any steps in accordance with the wireless message to ensure immediate compliance personally. Letter Ex. B.2 was issued by the District Election Officer Nagaur to the Returning Officer Merta on 27.2.67 asking him to reach Nagaur by 1st March 1967 in the forenoon. The Returning Officer received this letter on 28.2.67 and asking Shri Daulal by means of letter Ex. 83 to take the record to Nagaur. Before he took the record the of the Merta, Constituency Shri Tak came from Nagaur to take it on 28.2.67 in the evening. A recovery memo (Ex. B.5) was drawn up which was signed by Shri Daulal Tehsildar and by same other witnesses.
64. The Returning Officer also filed a certified copy of the voucher along with the original voucher book' showing that 175 big envelopes were issued to him. An objection was taken on behalf of the respondent that the voucher has not been proved. But assuming this voucher to be genuine, the Returning officer according to his own admission had 12 spare envelopes. Similar printed envelopes were supplied to all the Returning Officers of Legislative. Assembly Constituencies all over Rajasthan. The voucher book shows that they were supplied by the District Election Officer. There were 5 sub Divisional Officers in Nagaur District who acted as Returning Officers of 9 Assembly Constituencies. All of them must have had some spar envelopes. Further the District Election Officer must have had a reserve stock of these envelopes, from which he supplied them to different Returning Officers. When the boxes containing the sealed envelopes were found to be intact. Tampering could only have take place by changing the envelopes. The Returning Officer's seal as well as the sealing wax are admittedly available. 90 were rubber seal and inkpads The ballot papars could not have been tampered with without instigation of petitioner who was a Cabinet Minister and without the active connivance of Shri S.D. Arya, Returning Officer, Merta Assembly Constituency. The procuring of envelopes could not have been difficult for those who had the daring to tamper with the ballot papers.
65. The learned counsel for the petitioner posed two questions in his arguments. One was as to why the petitioner field two applications Ex. 2 and Ex. 3. The other was as to how the petitioner was able to name 20 out of the 22 polling stations in which 20 out of the 22 polling stations in which 28 bundles of double mark ballot papers were found. The reply of the learned Counsel for the respondent is that application Ex. 2 was filed to counter act application Ex. 3 filed by the respondent earlier in which the Returning Officer was charged with partialty towards the petitioner, application Ex. 3 was filed to induce the Returning Officer to reject more votes of the of the respondent improperly by recounting 24 polling stations and there by try to make the petitioner win in the election and doubles marking of the bundles of the valid ballot papers of the respondent was confined mostly to the polling stations named in the two applications. I have already held in my previous judgment that the petitioner had no information that any bundle of doubtful ballot papers had got' mixed with the bundles of valid ballot papers of the respondent. I have held in this judgment that with the exception of one ballot paper the seal marks in the petitioner's compartment on these 28 bundles were put after the declaration of the result. The conclusion from this is that bundles of the respondent valid votes were selected for double marking mostly out of the polling stations mentioned in the two applications Khadulji (No. 46) and Ladwa I No. 65) were mentioned in the applications. No double marked bundle was found in these polling stations. They were found in Toonkaliya (No. 11) and Chapri Khurd (No. 14) which were not name's in the applications.
66. Lastly it was argued on behalf of the petitioner that this Court has no jurisdiction to go into the questions to whether any ballot paper was tampered with after the declaration of the result because there is no express mention of it in the order of remand made by their Lordships of the Supreme Court. This argument is wholly misconceived. A ballot paper which was marked for the respondent only at the time of polling cannot be said to have been improperly accepted by the Returning Officer at time of counting. If a seal mark is put in the compartment of the petitioner after the declaration of the result by tampering with the ballot papers it cannot be said that there was any improper reception of any vote for the respondent.
ORDER
67. I dismiss the election petition with costs in favour of respondent No. 1 Respondent No. 2 will bear his own costs.
68. I assess the legal fees at Rs. 2000/- subject to the filing of a certificate in accordance with the High Court Rules. Respondent No. 1 is further entitled to the costs of the trial as well as the costs of the appeal filed by the petitioner in the Supreme Court.
69. The substance of the above order shall be communicated forth with to the Election Commission and the Speaker of the Rajasthan Legislative Assembly. An autthentiacted copy of this judgment shall be sent to the Election Commission as soon as it is prepared.