Jharkhand High Court
Bidesh Singh vs Madhu Singh And Ors. on 31 August, 2004
Equivalent citations: [2005(1)JCR173(JHR)], 2005 AIR JHAR HCR 388, 2005 A I H C 1317, 2006 (1) AKAR (NOC) 157 (JHA), (2004) 4 JLJR 182, (2005) 1 JCR 173 (JHA)
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This election petition has been filed by the above named petitioner who was one of the contesting candidates of 318 Panki Assembly constituency of Bihar Legislative Assembly held in the year 2000, to set aside the election of the Returned Candidate i.e. respondent No. 1 and further for his dec-laration as elected from the said constituency in place of respondent No. 1 after inspection and scrutiny of 258 illegally rejected ballot papers of booth No. 35 bearing vote in his favour.
2. The Election Commission of India issued Notification No. 464, dated 17.1.2000 for the election of 318 Panki Assembly constituency. The election programme of the Assembly election for 318 Panki Assembly constituency was as follows :
(i) Last date of filing of nomination -24.1.2000
(ii) Date of scrutiny of nomination paper - 25.1.2000
(iii) Last date of withdrawal of candidature -27.1.2000
(iv) Date of polling - 12.2.2000
(v) Date of Repolling - 24.2.2000
(vi) Date of counting - 25.2.2000 and 26.2.2000
(vii) Date of declaration of result -26.2.200.0.
16. candidates had filed their nomination which was found valid on scrutiny and Ramdeo Prasad Yadav, an independent candidate, withdrew his nomination and, thereafter, 15 candidates including the petitioner and the Returned Candidate i.e. respondent No. 1 remained in the fray. The election petitioner was an independent candidate whereas respondent No. 1, the Returned Candidate, was the candidate of the Samta Party, a recognized political party. Election symbols were allotted to the aforesaid 15 candidates for the said election and "bus" was allotted as election symbol to the election petitioner whereas "Mashal" was the election symbol allotted to respondent No. 1. As per the programme the election was conducted on 12.2.2000. On receipt of some complaints re-poll was held on 24.2.2000 at booth Nos. 5, 8, 57 and 94 of this constituency. The counting commenced in the morning of 25.2.2000 and it came to an end in the early hours of 26.2.2000 and the result was declared on 26.2.2000 at about 10.00 hours declaring respondent No. 1 as a Returned Candidate. The Returned Candidate had secured in all 17095 votes whereas the election petitioner secured 17058 votes. 1860 ballot papers were rejected. Since there was difference of less than 5% of secured votes between the election petitioner and respondent No. 1, a reference was made to the Election Commission and as per the instructions of the Election Commission respondent No. 1 was declared as a winning candidate respondent No. 1 was elected by a margin of 37 votes. Certificate of election in Form 22 under Rule 66 of the Conduct of Election Rules 1961 (thereinafter referred to as the said Rules) was granted to the respondent No. 1. In the said election 70.931 votes were polled out of whieh 69,071 was the valid votes and 1860 were rejected votes. The remaining 13 candidates have got less than l/6th of the total valid votes polled and they forfeited their security.
3. The case of the petitioner, in brief, is that he was one of the contesting candidates in the election of 318 Panki Assembly constituency held in the year 2000 and he in fact has secured the majority of the valid votes in the said election but the Returning Officer has illegally and contrary to law rejected 258 valid ballot papers which was polled in his favour on the flimsy ground i.e. not containing the signature of the Presiding Officer as well as distinguishing mark of the booth on these ballot papers though these ballot papers were genuine and were also marked by genuine voters in his favour and this illegality of improper rejection of 258 ballot papers are of booth No. 35 and the said improper rejection of the aforesaid ballot papers was done in the 3rd round of the counting. It is alleged that Dost Mohammad the election agent, of the petitioner raised protest orally and also in writing at the appropriate moment but the Returning Officer illegally and by flagrant breach of law rejected the protest of the election agent of the petitioner on 26.2.2000. Respondent No. 1 was declared elected by a narrow margin of 37 votes only an if the said 258 votes cast in favour of the petitioner had not been rejected illegally, this petitioner would have been declared elected by a margin of 221 valid votes. It is also alleged that booth No. 35 is at village Pathakpagar and about 462 voters of the said booth had also sent through speed-post a protest petition on 1.3.2000 to the Chief Election Commissioner, New Delhi, Chief Electoral Officer, Bihar and Human Rights Commission, New Delhi stating therein that 258 valid ballot papers bearing voting mark by the genuine voters were illegally rejected by the Returning Officer only on account of the mistake committed by the concerned Presiding Officer. It is also alleged that some of the voters who are also the resident of Pathakpagar aforesaid had filed a petition before the Returning Officer in the course of counting of the ballot papers on 26.2.2000 protesting against illegal rejection of valid ballot papers of the said booth and they had requested the Returning Officer either to accept this illegally rejected ballot papers as valid or to hold fresh election and the said petition was received on 26.2.2000. It is alleged that the counting of the ballot papers of the said election was held boothwise and after the conclusion of the counting of ballot papers the Returning Officer did not allow the petitioner to file a petition for re-count and announced the final result declaring the respondent as Returned Candidate by a narrow margin of 37 votes. It is alleged that the election of respondent No. 1 is fit to be set aside on the sole and solitary ground of improper rejection of 258 valid ballot papers pertaining to booth No. 35 bearing vote in favour of the petitioner and these ballot papers were rejected by the Returning Officer on the filmsy ground of not containing signature of the Presiding Officer on account of his mistake and Rule 56(2)"(h) of the said Rules provides that any ballot paper, on which a vote is cast by genuine voter but due to the mistake or failure on the part of the Presiding Officer, does not contain both the signature of the Presiding Officer and the distinguishing mark of the booth, such ballot paper shall not be rejected though admittedly 258 ballot papers at booth No. 35 were issued to the electorates in due course and in normal conduct of the discharge of duty by the Presiding Officer and these ballot papers are also not spurious and thus the rejection of 258 ballot papers cast in favour of the petitioner was illegal, arbitrary and contrary to law and the order of rejection of the Returning Officer in respect thereof is without consideration of the relevant provision of law and application of mind by the Returning Officer. It is also alleged that the ballot papers of booth No. 35 were opened at counting table No. 7 in the third round of counting and ultimately 258 ballot papers cast in favour of the petitioner were illegally rejected at the central table and the improper rejection of the valid ballot papers of the petitioner has materially affected the result of the election. It is further alleged that this petitioner in fact has secured the majority of valid votes in the election in question but on account of illegal rejection of 258 valid ballot papers cast in favour of the petitioner the respondent No. 1 has secured an "artificial majority of 37 votes more than the petitioner and as such if 258 ballot papers cast in favour of the petitioner are added to the total votes secured by the petitioner this petitioner is bound tp be declared elected by a margin of 251 votes more than respondent No. 1. It is also alleged that the petitioner does not seek inspection scrutiny and re-counting of all the ballot papers used in the election in question but he wants that this Court in the interest of justice and to arrive at the truth only the bundle of rejected votes in respect of polling booth No. 35 be inspected and on inspection of the illegally rejected 258 valid ballot papers of booth No. 35 if found to be true, said 258 ballot papers be added to the total number of the votes counted in favour of the petitioner and he be declared to be duly elected from the said constituency in place of respondent No. 1 after setting aside the election of respondent No. 1 as he has not secured- the majority valid votes in the election in question. Lastly it has been submitted that the petitioner in order to protect the verdict of the electorates and also to protect the purity of the election has presented this election petition and the justice is not to be frustrated merely on technicality and the action by law is not to be equated with a game of chess and provision of law is not merely a formality to be observed like rituals but within the provisions of law there is juristic principle i.e. to do justice between the parties. It has also been alleged that the petitioner has furnished adequate statement of all the material facts including the number of the polling booth, number of the table.and also the round number in which 258 valid ballot papers cast in favour of the petitioner were improperly and illegally rejected by the Returning Officer.
4. Written statement has been filed on 27.4.2001 by respondent No. 1 Madhu Singh and he has contested the case. His case, filter alia, is that the petitioner has no valid cause of action and the petition filed by him is contrary to facts and law and is not maintainable and it is barred by the principle of waiver, estoppel and acquiescence and besides that it is not in strict compliance of the provisions of Section 83 of the Representation of People Act, 1951 (hereinafter referred to as the said Act) as it is miserably lacking in furnishing adequate statement of material facts within the purview of Section 83(1) of the said Act, and this election petition has been filed with malajide motive and intention and to succeed on the basis of corrupt practice of casting bogus ballot papers by misrepresentation of facts and law. It is also alleged that the copy of the election petition served upon this ¦ respondent is not in accordance with required mandatory Rules of signing, verification and affidavit and though each page of the election petition has been signed by the petitioner but there is no attestation of annexures to be true copies of its originals and the annexures are not attested and verified and duly affidavited in accordance with law as mandatorily required under the said Act and the said Rules. It is also alleged that allegations of illegal and corrupt practice have been alleged against the Returning Officer in relation to the rejection of 258 ballot papefs pertaining to booth No. 35 of the said Assembly constituency but the Returning Officer has not been arrayed as respondent which is a mandatory requirement under Section 82 of the said Act, and its non-compliance entails the dismissal of the election petition. The further case of this respondent is that the election petitioner is full of false, incorrect and distorted facts unsupported by documents and no prima facie case has been made out by the petitioner for the reliefs as claimed and the petitioner has also not disclosed the serial number of the ballot papers which are alleged to have been rejected and failure to disclose such serial numbers of the ballot papers entails rejection of the election petition as no prima facie case is made out against this respondent. It is alleged that counting of booth No. 35 was made in the third round of counting in presence of the counting agents of the candidates and prior to rejection of 258 ballot papers of the said booth Returning Officer as per Rule 56 (3) of the said Rules gave reasonable opportunity to. all the agents present as well as the petitioner to inspect all the 258 ballot papers and after obtaining their consent the result-sheet was prepared and the result of the third round of counting was announced but in the last round of counting when it was found that the petitioner is loosing by 37 votes, only then a protest petition was filed and the Returning Officer after considering the entire pros and cons of the matter has rightly rejected the protest petition filed by the election agent of the petitioner on 26.2.2000 (vide Annexure 1 to the election petition) and now the petitioner is estopped from challenging the rejection of 258 ballot papers of booth No. 35 by this election petition. It is also alleged that the counting agent of the petitioner or the petitioner himself did not raise any objection regarding rejection of 258, ballot papers at the time of very counting of votes of booth No. 35, in the third round of counting rather the counting agent of the petitioner was instrumental in rejection thereof and they had certified the counting to be correct in all respect which used to be certified after every round of counting which means that the petitioner has waived any possibility of objection on this score and after being unsuccessful he cannot re-agitate the same issue and the order dated 26.2.2000 (Annexure 1 to the election petition) is in accordance with the mandates of the said Act and the said Rules after proper application of mind by the Returning Officer. It is alleged that there is admission of the petitioner that these 258 ballot papers were cast using ballot papers lying unsigned and unstamped as required under the direction of the Election Commission and the said Act, and it can be said that these are forged ballot papers and rightly rejected on the ground of it not being sealed and signed by the Presiding Officer. It is alleged that the averments made in paragraph No. 3 of the election petition is false, concocted and supported with manufactured documents after announcement of the result and the filing of any complaint by 462 voters of booth No. 35 to the authorities concerned do not represent correct materials, facts and particulars and similarly Annexure 3 of the election petition is an irrelevant and manufactured doeument for the purpose of this case after announcement of the result at 6.00 hours on 26.2.2000 and Annexure 3 aforesaid was submitted before the Returning Officer at 11.00 hours on that day.
It is alleged that after completion of every round of the counting, the agents of the contesting candidates used to certify the correctness of counting process in writing and, thereafter, result-sheet was used to be prepared and the result is announced and the ballot papers of booth No. 35 of village Pathakpagar was taken for counting in third round of counting and after the completion of the counting of the third round, the agents of the contesting candidates including that of the petitioner duly certified its correctness in all respects including the correctness of the rejection of 258 ballot papers after being fully satisfied that these 258 ballot papers were not bearing signatures of the Presiding Officer and seal thereon and, thereafter, the result of the third round of counting was announced. It is alleged that the entire counting process came to an end at about 5.00 a.m. on 26.2.2000 and there was absolutely no objection of the candidates and their agents after the end of the each round of the counting and as such result was announced at about 6.00 hours on 26.2.2000 itself and Annexures 1 to 3 to the election petition- are after the announcement of the final result of election of the said constituency and the allegation that the Returning Officer did not allow the petitioner to file petition for re-counting has no semblance of truth as after each round of the counting result was published after certification of its correctness by the agents of the contesting candidates. It is further alleged that 258 ballot papers of booth No. 35 were rejected on the ground, that they did not bear seal and signature of the Presiding Officer thereon in presence of the agents and the petitioner who after the end of the counting of third round have duly certified its correctness in all respect and there is no illegality or any corrupt practice or illegal rejection on the basis of which the election of this respondent can be set aside and the petitioner having lost the election by margin of 37 votes started challenging the election by filing petition on flimsy grounds through different source after announcement of the final resujt. There is absolutely no question of calling for inspection of those ballot papers when admittedly the petitioner has admitted in writing of the correctness of counting of the third round. Lastly it has been alleged that this respondent has also file a recrimination petition under Section 97 of the said Act alleging the use of corrupt practices during the election by the petitioner who has tried his level best to disturb the sanctity and the purity of the election and thus the election petition is fit to be dismissed.
5. The respondent No. 1 has filed recrimination petition on 23.3.2001 under Section 97 of the said Act for a declaration that due to corrupt practices committed by the petitioner, if he would have been the Returned Candidate, his election would have been void if a petition would have been presented calling in question of his election and further to restrain him from participating in any election for coming six years. It has been alleged that the petitioner has criminal antecedent and several criminal cases of serious nature such as under Sections 302 and 307 of the. Indian Penal Code, as well as under the provisions of the Arms Actare lying against him and his associates, brothers, cousins, nephews etc. It is alleged that the petitioner on the strength of antisocial elements used to create panic in the locality and the police officials and other Administrative Officers who due to fear or on the strength of the money used to collude with him and obey him. It is alleged that in course of campaign in the election of the year 2000 his relatives and associates were found campaigning with arms and ammunitions and the Officer-in-Charge, Panki Police Station along with A.S.I. Satya Narain Prasad lodged Panki P.S. Case No. 6 of 2000 on 7.2.2000 against Bihari Singh and others under Section 26(1-B), 26 and 35 of the Arms Act and had seized a stolen jeep, country made pistol and cartridges. It is alleged that respondent No. 1 knowing fully well regarding the corrupt practice which was likely to be committed by the petitioner in the garb of terrorist area during voting sent a letter dated 8.2.2000 through Fax to the Chief Election Commission, New Delhi for deputing large number of police force for security as several booths of this constituency are most sensitive so that fair and impartial election might be conducted and this respondent also sent a letter dated. 9.2.2000 through Fax to the Chief Election Commission, India regarding the corrupt practice which is likely to be committed by the petitioner in course of election in collusion with Officer-in-Charge Manatu P.S., Officer-in-Charge Panki P.S. and Block Development Officer's of Panki and Manatu blocks and inspite of the prior information aforesaid no serious steps were taken by the local administration or the Election Commission for the reasons best known to them. It is alleged that on 12.2.2000 i.e. the date of polling, a bomb was blasted near village Chunka by the associates and election workers of the petitioner with the consent of the petitioner for creating panic in the locality so that voters would not come out of their house to cast their votes. It is alleged that the petitioner in collusion with Officer-in-Charge Manatu P.S. and Block Development Officer, Manatu succeeded in his game plan and he got maximum votes cast in his favour at booth numbers 6, 8, 27, 29, 30; 31 and 32 and at some of the booths the petitioner has got 80-90% of votes and the petitioner has captured practically all the booths of Manatu block in collusion with local administration and on strength of terrorism. It is further - alleged that the petitioner himself was casting bogus votes in his favour on booth No. 9 of Manatu block and on objection by Naresh Ram, a worker of respondent No. 6 he has been brutally assaulted by the petitioner and his workers and thinking him to be dead left him near the booth and fled away and the villagers brought him to the hospital but none could dare to report the incident to the police and some of the police personnels have also seen the incident but they also did not dare to interfere. It is alleged that the petitioner in collusion with the Officer-in-Charge of Manatu Police Station and the Block Development Officer, Manatu practically captured the entire booth of Manatu block and he himself with the help of the polling agents and workers cast 80-90% of votes in his favour and prevented all genuine voters to cast their votes and the result-sheet boothwise will show the corrupt practice committed by the petitioner.
The further case of this respondent is that the petitioner after expending heavy amount has refrained the polling party from fair election and also on his threat the genuine voters were refrained by him and by his associates to cast their votes and he captured booth Nos. 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 28, 29, 30, 31, 32 and 33 which are within Manatu block and this respondent along with other contesting candidates of the national parties requested for re-polling on these booths but all in vain. It is also alleged that this respondent had repeatedly made complaint to all the authorities right from Election Commission of India to the Returning Officer regarding the anticipated corrupt practices which were likely to be committed during election since 8.2.2000 i.e. prior to the polling and also during casting of votes on 12.2.2000 and also repeatedly requested for re-polling on some of the booths due to the corrupt practices of the petitioner and the respondent uide letter dated 15.2.2000 had intimated the Commissioner, Palamau Division that the voters of booth Nos. 28, 29, 30, 31, 32, 8 and 9 were restrained on Padma cluster and the petitioner in collusion with police staff cast practically 100/% votes in his favour himself with his workers and polling agents which clearly proves the corrupt practice committed by the petitioner and his supporters with his consent and as such the polling of more than 90% poll is liable to be declared void and the Returning Officer submitted his report recommending of re-polling only on booth Nos. 5 and 8 which is illegal and against the facts without proper and thorough enquiry and the petitioner with his workers and polling agents again captured booth Nos. 5 and 8 and cast maximum votes in his favour. It is also alleged that the ballot papers of booth No. 35 were counted in the 3rd round of the counting and 258 ballot papers were found neither sealed nor signed by the Presiding Officer in course of counting which were shown to the counting agents of all the candidates and the petitioner was allowed to inspect personally the aforesaid ballot papers and with the consent of the petitioner and the agents of all the candidates these 258 ballot papers were rejected as per the Rules and the counting of the third round was duly certified by all the agents including that of the petitioner as was being done in the case of end of counting of each round and, thereafter, result of the each round used to be announced and when in the last round of counting of the votes the petitioner learnt that he has lost the election by 37 votes only, he created much hue and ciy for recounting and allowing these rejected ballot papers as valid and due to his unwarranted disturbance the result was announced after one hour of the counting and the certificate, of election was issued to this respondent. It is alleged that the petitioner has surrounded the counting arena and threatened this respondent that he will snatch the certificate and the respondent was brought to his residence in police escort with the certificate of election. It is also alleged that seeing the * delay in announcement of the final result and the corrupt practices adopted by the petitioner during election campaign and polling this respondent has sent a Fax message to the Election Commission of India and State Election Commissioner, Patna in respect thereof with a request to order for announcement of the result at once. Lastly it has been alleged that the petitioner has prayed for inspection of bundle of rejected votes to keep the truth away from the Court and to camouflage the matter and if the entire ballots of Manatu block or the resultsheet of the booths in which the corrupt practice by the petitioner has been alleged will show the illegality and corrupt practice of the petitioner which would have been sufficient to declare the election of the petitioner as void if he had been the Returned Candidate and a petition would have been presented calling in question his election and in view of the corrupt practice committed by the petitioner as mandated under Section 123 of the said Act the. petitioner is not entitled to the additional reliefdeclaringhimelectedinplaceofthis respondent.
6. In the written statement of the election petitioner to the re-crimination petition, the case of the petitioner, inter alia, is that the re-crimination petition is not maintainable for non-compliance of Sections 81(3), 83, 86 and 97 of the said Act read with Rule 94 A of the Rules and the re-crimination petition is barred by law of limitation having been filed beyond the period of 14 days from the date of announcement of the trial as provided by Section 86 read with Section 97 of the Act. It is alleged that the recrimination petition contains serious allegations of corrupt practices such as iMdue influence on the voters in the free exercise of their electoral right booth capturing of a large number of polling stations and procuring the help of the Gazetted Officers including Block Development Officer of Manatu Block and Officer-in-Charge of Manatu Police Station by the election petitioner but the respondent No. 1 has failed to comply with the mandatory provisions of Section 83 of the Act as he has not furnished the material facts and full particulars as required there-under and the petitioner has also not subscribed an affidavit in Form 25, as prescribed by the Act and the Rules and furthermore the verification and the affidavit of the re- crimination petition has not been done in accordance with law inasmuch as the sources of information has not been disclosed either in the verification or in the affidavit. Denying his criminal antecedent it has been alleged by the petitioner that respondent No. 1 has got criminal antecedents inasmuch as he has been an accused in several serious criminal offences which are pending for trial and the details of those criminal cases have been furnished in para 8 of this written statement. Denying the allegation made in para 4 of the re-crimination petitioner it has been stated that the election petitioner has no concern with such allegations and the persons named therein are the supporters and workers of respondent No. 1 and furthermore the copy of Panki Police Station Case No. 6 of 2000 corresponding to G.R. Case No. 136 of 2000 has not been annexed to the re-crimination petition and as such the petitioner is unable to give an effective reply concerning the said case and the allegations do not contain any relevant material facts and is vague and no complete cause of action arises to respondent No. 1 due to such vague pleading and the entire allegation of apprehension of commission of corrupt practice against the allegation petitioner as alleged is totally false and Annexure R-l/A to the re-crimination petition sent to the Election Commission of India through Fax does not indicate that election petitioner is likely to commit corrupt practices. It is alleged that on every polling booth there were deployment of para military forces, namely, C.R.P.F. and B.S.F. It is further alleged that the apprehension of respondent No. 1 concerning commission of corrupt practices by this petitioner in collusion with the Officer-in-Charge and Block Development Officers of Panki and Manatu blocks read With Annexure R-l/B and R-l/Bl is false whereas this petitioner is a peace loving and law abiding citizen and has no criminal mentality and it is false to say that he used to canvass in the company of armed men and his elder brother was arrested in this connection and respondent No. 1 has not disclosed the name of his elder brother. It is alleged that no brother of this petitioner was ever arrested as alleged. Denying the allegation of corrupt practice i.e. booth capturing and undue influence it has been stated by the petitioner that the alleged corrupt practice does not contain material facts and full particulars as required by the mandatory provision of Section 83 of the said Act and respondent No. 1 has not mentioned the name of the persons who had committed corrupt practice including the blasting of the bomb near village Chunka and besides that respondent No. 1 has not indicated the factum of commission of corrupt practice and the time of its commission and has not subscribed the mandatory affidavit in form 25 as required by Section 83 of the said Act read with Rule 94-A of the Rules and respondent No. 1 has also not disclosed the name of the voters of various polling booth who became the victim of alleged undue influence and booth capturing. The further case of the petitioner is that the Returning Officer thoroughly enquired the allegations and particularly the allegation against this petitioner was found to be baseless and concocted and the Returning Officer recommended for re-polling of booth Nos. 5 and 8 of Manatu block.
It is alleged that the allegation of booth capturing and casting of bogus votes by the petitioner at booth No. 9 and assault on Naresh Ram a worker of respondent No. 6 by the petitioner and his workers is totally false. It is alleged that respondent No. 1 or any contesting candidate including respondent No. 6 or even Naresh Ram aforesaid did not lodged any complaint or information to the concerned police station and thus the allegation aforesaid is bereft of truth and respondent No. 1 has not furnished material facts and full particulars. It is alleged that no protest petition was filed either by the concerned candidates or by their polling agents to the concerned Presiding Officers regarding the allegation of corrupt practice alleged against this petitioner and the high percentage of polling in itself cannot prove the fact of both capturing because high percentage of polling by voters depends on the popularity of the candidates among the voters accompanied by the political consensus and awareness of the voters. It is also alleged that the allegations as made in paragraph 13 of the re-crimination petition read with Annexure R-1 /D are false, vague and not containing material facts and full particulars in respect of the alleged corrupt practice at the instance of the election petitioner. It is alleged that the grievances raised by respondent No. 1 against the Returning Officer is uncalled for baseless and bereft of truth. In fact the Returning Officer after making a thorough enquiry in respect of the grievances aforesaid made recommendation for re-polling on certain booths as required by law and Annexure R-l/E, the report of the Returning Officer clarifies the truth of the matter and the allegation of corrupt practice said to have been committed by the election petitioner is totally false and concocted. The further case of the petitioner is that it is false to say that the Officer-in-charge of Manatu Police Station and Block Development Officer of Manatu block were in collusion with this petitioner. It is alleged that the Election Commission of India after enquiry found the allegation of respondent No. 1 false in respect thereof and no action was taken on the Fax message contained in Annexure R-1 /F. It is also alleged that the allegation regarding booth capturing on the day of re-polling on booth No. 5 and 8 levelled against this election petitioner and his workers is totally false and concocted. It is alleged that respondent No. 1 has not furnished material facts regarding the manner of booth capturing and the full particulars of allegations of booth capturing as required by Section 83 of the Act and has also not mentioned the name of a single voter who became the victim of the alleged booth capturing and respondent" No. 1 has also not given the prescribed affidavit in form 25 as required. It is alleged that 258 ballot papers in respect of booth No. 35 which were bearing votes in favour of the election petitioner were illegally rejected by the Returning Officer when these ballot papers were genuine ballot papers but on account of mistake and failure on the part of the Presiding Officer they did not bear the signature and the distinguishing mark on the back of these ballot papers and it is incorrect to say that with the consent of the election petitioner and the agents of all the candidates these ballot papers were rejected and it is further incorrect to say that the counting agent of the petitioner has put his signature on the certificate of satisfaction at the end of the third round of the counting of the ballot papers including the improper rejection of 258 valid ballot papers cast in favour of the petitioner pertaining to booth No. 35. It is alleged that respondent No. 1 vide Annexure R-l/G put undue pressure on the Returning Officer not to count aforesaid 258 valid ballot papers bearing vote in favour of the petitioner for which the election petitioner has made humble request to count the same in his favour but the Returning Officer improperly rejected aforesaid 258 valid ballot papers which has materially affected the result of the election. Therefore, the recrimination petition is fit to be dismissed.
7. It is relevant to mention here that the petitioner had filed an Interlocutory Application No. 457 of 2001 on 13.4.2001 under Section 86(1) of the said Act raising preliminary objection for non-compliance of Sections 81 and 83 of the said Act read with Order VI, Rule 16 and Order VII, Rule 11 of the Code of Civil Procedure for summary disposal of re-crimination petition. The respondent No. 1 has also filed rejoinder to the said application and this Court after hearing learned counsel for both the parties vide order dated 31.8.2001 dismissed the said Interlocutory Application and it was held that the re-crimination petition is maintainable.
8. Respondent No. 1 had also filed Interlocutory Application No. 595 of 2001 on 26.4.2001 under Sections 81, 83 and 86(1) of the said Act and Rule 94-A of the said Rules read with Order VII, Rule 11 and Order XIV, Rule 2 of the Code of Civil Procedure for dismissal of the election petition on preliminary issue that the election pettion is not maintainable. A rejoinder was filed on behalf of the election petitioner on 6.3.2002 to the said Interlocutory Application filed by respondent No. 1. This Court vide order dated 2.5.2002 had held that the election petition is not maintainable and consequently it was dismissed. The election petitioner preferred Civil Appeal No. 4402 of 2002 before the Apex Court against the order dated 2.5.2002. The Apex Court vide order dated 23.9.2003 allowed the appeal of the election petitioner and set aside the order dated 2.5.2002 and it has been observed that keeping in view the fact that the Tribunal lias exceeded its jurisdiction under Section 86 of the Act we have no other option but to set aside the impugned judgment leaving the question raised by respondent No. 1 in his application open for] determination thereof at an appropriate stage.
9. In view of the pleadings of the parties the following issues have been framed on recast for adjudication in this case:
(i) whether 258 valid ballot papers in respect of both No. 35 of 318 Panki Assembly constituency of the petitioner were improperly rejected by the Returning Officer, as alleged in the election petition?
(ii) whether the election petitioner is entitled to be declared elected in place of the respondent No. 1 after inspection and scrutiny of aforesaid 258 rejected ballot papers of petitioner in respect of booth No. 35 of 318 Panki Assembly constituency?
(iii) whether the petitioner has got valid cause of action to file the election petition in view of the fact that the agent of the petitioner was himself instrumental1 in rejection of 258 ballot papers on the ground of those not bearing the seal and signature of Presiding Officer at the end of counting of third round i.e. at the end of counting of votes of booth No. 35 of 318 Panki Assembly constituency ?
(iv) whether the election petition is fit to be dismissed for non-compliance of mandatory requirements of the .Representation of People Act, 1951, Condct of Election Rules, 1961 and High Court Rules in election matters ?
(v) whether in view of the corrupt practices committed by the election petitioner in course of the election of 318 Panki Assembly constituency, election petitioner is entitled to jbe declared elected in place of respondent No. 1?
(vi) Is the signature alleged to be of election petitioner on the certificate of satisfaction of the third round of counting in relation to polling booth No. 35 of village Pathakpagar genuine?
(vii) is the re-crimination petition maintainable?
(viii) Is the petitioner entitled for the relief as claimed including his declaration as the Returned Candidate in favour of the allegations made in the re-crimination petition.
10. The election petitioner has examined eight witnesses in support of his case. PW 1, Bidesh Singh is the election petitioner himself. PW 2, Dost Mohammad is his election agent. PW 3, Bhawanath Singh is the counting agent of the petitioner at table No. 7 where the ballot papers of booth No. 35 of village Pathakpagar were counted in the third round of counting PW 8, Ram Sagar Dubey was the Presiding Officer at the booth No. 35 situate in village Pathakpagar and Ext. B is the Presiding Officer's diary which bears the signature of this witness PW 4, Lakhan Thakur, PW 5, Ram Janam Mistry PW 6, Rasul Bux Ansari and PW 7 Nand Kishore Pathak are the voters of booth No. 35 of village Pathakpagar and they have sent a joint petition along with others which bears their signature and signature of PW 4 has been marked Y/2 for identification. The alleged signature of the petitioner on the certificate of satisfaction have been marked as X to X/7 for identification. Ext. A to A/4 are the signatures of PW 2, Dost Mohammad on the certificate of satisfaction of 8th, 9th, 1 lth and 13th round of counting of the ballot papers of the said constituency. Ext. 1 is the ordersheet of the Returning Officer of the proceeding of election of the said constituency. Ext. 2 is the notice of election of 318 Panki Assembly constituency and Ext. 3 is the document of seeking permission for declaration of the result of the said Assembly constituency. Ext. 4 is the final result-sheet of the said election. Ext. 5 is the order dated 26.2.2000 of the Returning Officer on the petition of the election agent of the petitioner filed before him on 26.2.2000 at 5.00 hours Ext. 6 is the signature of RW 7 Gupteshwar Singh, respondent No. 13 on the vakalalnama filed by him in this case. Ext. 7 is the certified copy of the formal FIR along with fardbeyan and charge-sheet of Panki PS Case No. 85 of 1986 (G.R. Case No. 1633 of 1986) under Section 147, 148, 149, 307 and 302 of the Indian Penal Code and under Section 27 of the Arms Act in which respondent No. 1 figures as an accused Exts. 8 and 8/a are the signature of respondent No. 1 on the verification and affidavit attached with his written statement.
11. Respondent No. 1 has examined 42 witnesses on his behalf RW 41, Madhu Singh is respondent No. 1 in this case.. RW 3, Raj Keshwar Singh is his election agent. RW 1, Awadh Singh, RW 2, Bishun Dayal Mochi, RW 4, Baijnath Singh, RW 9, Awadh Bihari Singh, RW 12, Dheman Yadav, RW 16, Ejaj Ahmad, RW 17 Upendra Kumar Tiwari, RW 22 Agrajit Singh, RW 24 Kamlesh Kumar Singh, RW 31 Prithvi Nath Singh, RW 32 Bindeshwari Singh, RW 33 Keshav Singh, RW 34 Tapeshwar Singh, RW 40, Rajendra Prasad Singh are the counting agents at counting table Nos. 5, 2, 7, 1, 10, 1, 14, 13, 9, 11, 13, 14, 12 and 9 respectively in course of the counting of the ballot papers which commenced on 25.2.2000 and came to an end in the early morning of 26.2.2000 of the said 318 Panki Assembly constituency RW 29 Sahdeo Prasad Singh is the counting agent of respondent No. 5 Sripati Singh at the main counting table RW 7 Gupteshwar Singh who is respondent No. 3 and one of the contesting candidates claims himself to be present in course of counting of the ballot papers in the counting hall and his signatures on the certificate of satisfaction of the first round and fourth round of counting are Exts. A/10 and A/11 respectively and he has also identified the signature of election petitioner Bidesh Singh appearing on the certificate of satisfaction of the aforesaid round of counting which are Exts. A/12 and A/13 respectively RW 14 Surendra Ram who is respondent No. 10 and one of the contesting candidates in the said election has admitted his signature on the certificate of satisfaction of the 1st, 2nd, 4th, 5th and 7th founds of counting of the ballot papers of the said election and his signatures thereon are Exts. A/14 to A/18 respectively and he has also identified the signature, of the election petitioner appearing on the certificate of satisfaction of the 2nd, 3rd and 4th round of counting of the ballot papers which are Exts. C/l to C/3 which were initially marked as X, X/l and X/2 for identification. -RW 42, S.M. Jamil Ahmad is the hand writing and finger print expert who has scientifically examined and compared the disputed signatures of Bidesh Singh appearing on the certificate of satisfaction with his admitted signature and his report is Ext. D. The other witnesses examined oh behalf of the respondents are in respect of the allegations averred in the re-crimination petition (Ext. E) of respondent No. 1 and they are RW 5, Mangar Singh, RW 6 Lakhan Ram, RW 8, Bataan Manjhi, respondent No. 7 and a contesting candidate, RW 10, Rabindra Paswan, RW 11 Janeshwar Ram Ravi, RW 13, Indradeo Yadav, RW 15, Pappu Khan @ Ahmad Khan, RW 18 Sitaram Mahto, RW 19 Raj Kumar Dubey, RW 20 Mritunjay Singh, RW 21 Phaneshwaf Paswan, RW 23 Chatur Kumar Singh, RW 25 Ram Kishore Ram, RW 25 Vijay Kuswaha, RW 27 Raj Grih Paswan, RW 28 Rambrat Singh, RW 30 Bhagirathi Bhuian, RW 35 Raj Kumar Singh, RW 36 Raj Muni Singh, RW 37 Suryanath Singh RW 38 Kameshwar Ram and RW 39 Prasad Singh. Besides that evidence of RW 2 Bishun Dayal Mochi and RW 29 Sahdeo Prasad Singh has also its co-relation with the re-crimination petitioner (Ext. E). Ext. C and Exts C/4 to C/7 are the purported signatures of the election petitioner on the certificate of satisfaction of the 1st, 5th, 6th, 7th and 10th round of counting. Certificate of satisfaction of third roundl of counting has been marked as Z for identification. Exts. A/5 to A/9 are the signatures of Kaushlesh Mehta, Kameshwar Prasad Yadav, respondent No. 13 Gupteshwar Singh, petitioner Bidesh Singh and respondent No. 14 Pradeep Razak respectively on the certificate of satisfaction of the fourth round of counting. Exts. A/19 and A/20 are the signatures of RW 29, Sahdeo Prasad Singh, the counting agent of respondent No. 5, Sripati Singh on the certificate of satisfaction of 5th and 10th round of the counting respectively. Signatures of Ganesh Mahto, Kaushlesh Mehta, Ibrar Khan, Vishwanath Singh and Pradeep Razak on the certificate of satisfaction of the 5th round of counting are Exts. A/21 to A/25.
12. Issue Nos. (i), (ii), and (vi)-All these issues have been taken together for the sake of convenience as they are inter connected.
13. It will admit of no doubt that election of 318 Panki Assembly constituency of the Bihar Legislative Assembly was held on 12.2.2000 and the counting of the ballot papers commenced from 25.2.2000 and came to an end in the early hours of 26.2.2000 and after the completion of the counting the result of the election was declared on 26.2.2000 after seeking direction of the Election Commission of India by the Returning Officer. There were 15 contesting candidates in the fray in the election of the said constituency. Respondent No. 1 Madhu Singh polled 17095 votes whereas the election petitioner Bidesh Singh got 17058 votes and respondent No. 1 was declared elected by the margin of 37 votes and Certificate of Election was issued in Form 22 as per Rule 66 of the said Rules to respondent No. 1. The case of the election petitioner is that he in fact has secured the majority of the valid votes in the said election but the Returning Officer has illegally and contrary to law rejected 258 valid ballot papers bearing vote in his favour on.the.flimsy grounds i.e. these ballot papers were not containing the signature of the Presiding Officer as well as distinguishing mark of the booth thereon though these ballot papers were genuine and were also marked by genuine voters in his favour and this illegality of improper rejection of 258 ballot papers are of booth No. 35 and the said improper rejection of the aforesaid ballot papers was done in the third round of the counting. The further case of the election petitioner is that Dost Mohammad, the election agent of the petitioner raised protest orally and also in writing at the appropriate moment but the Returning Officer illegally and by flagrant breach of law rejected the protest of the election agent of the petitioner on 26.2.2000. It is also alleged that 258 valid ballot papers bearing voting mark by the genuine voters were illegally rejected by the Returning Officer only on account of the mistake committed by the concerned Presiding Officer and Rule 56 (h) of the said Rules provides that any ballot paper on which a vote is cast by genuine voter but due to the mistake or failure on part of the Presiding Officer does not contain both the signature of the Presiding Officer and the distinguishing mark of the booth such ballot papers shall not be rejected and the said improper rejection of 258 ballot papers bearing vote in favour of the petitioner has materially affected the said election and if 258 ballot papers bearing vote in favour of the petitioner are added to the total votes secured by him, he is bound to be declared elected by a margin of 251 votes more than respondent No. 1. The case of the respondent No. 1 is that the election petition is miserably lacking in furnishing adequate statement of material facts within the purview of Section 83(1) of the said Act and the petitioner has not disclosed the serial No. of the ballot papers which are alleged to have been rejected which entails rejection of, the election petition as no prima facie case is made out against this respondent and prior to rejection of 258 ballot papers of booth No. 35 the Returning Officer as per Rule 56 (3) of the said Rules gave reasonable opportunity to all the agents present as well as the petitioner to inspect all the 258 ballot papers and after obtaining their consent the result-sheet was prepared and the result of the third round of counting was announced but in the last round "of counting when it was found that the petitioner is loosing by 37 votes, only then a protest petition was filed and the Returning Officer after considering the entire pros and cons of the matter has rightly rejected the protest petition filed by the election agent of petitioner on 26.2.2000 and now the petitioner is estopped from challenging the rejection of 258 ballot papers of booth No. 35 and these 258 ballot papers were unsigned and unstamped as required under the direction of Election Commission and under the provisions of the said Act and these ballot papers are forged ballot papers and rightly rejected on the ground of their not being sealed and signed by the Presiding Officer. The further case of this respondent is that after the completion of the counting of the third round the agents of the contesting candidates including that of the petitioner duly certified its correctness in all respects including the correctness of rejection of 258 ballot papers after being fully satisfied that these 258 ballot papers were riot bearing signature of the Presiding Officer and seal thereon and, thereafter, the result of the third round of counting was announced and there was absolutely no objection of the candidates and their agents after the end of third round of counting and after the result was announced the election petitioner filed a petition for re- counting of those ballot papers in his favour and the said rejection of 258 ballot papers are not unlawful rejection by the Returning Officer. Section 100 of the said Act mandates the ground for declaring election to be; void and the ground stated in sub-section l(d) is relevant regarding the issue in question which runs thus :
" 100. Grounds for declaring election to be void.-(I) Subject to the provisions of sub-section (2) if the High Court is of opinion-
(a) xx xx xx
(b) xx xx xx
(c) xx xx xx
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by a agent other than the election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any Rules or orders made under this Act, the High Court shall declare the-election to the returned candidate to be void (2) xx xx xx Rule 38 (1) of the said Rules is equally relevant in this connection which mandates that every ballot paper before it is issued to an elector, and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the Presiding Officer. Rule 56 (1) (hr) is equally relevant in this connection which provides that if the ballot paper does not bear both the mark and the signature which it should have borne under the provision of sub-rule (1) of Rule 38 shall be rejected by the Returning Officer provided that where the Returning Officer is satisfied that any such defect as is mentioned in clause (h) has been caused by any mistake or failure on the part of a Presiding Officer or Polling Officer, the ballot papers shall not be rejected merely on the ground of such defect. Admittedly the ballot papers of booth No. 35 of village Pathakpagar were counted at counting table No. 7 in the 3rd round of counting. There is no dispute in respect of the fact that 258 ballot papers of booth No. 35 were rejected by the Returning Officer on the ground that they did not bear the signature of the Presiding Officer and also the distinguishing mark of the said booth thereon. It is equally relevant to mention here that it is not the. case of the respondent in his written statement that the aforesaid 258 ballot papers are spurious ballot papers.
14. Let us now advert the evidence on the record PW 1 Bidesh Singh, the election petitioner has deposed that he has lost the election of 318 Panki Assembly constituency by a margin of 37 votes and the counting of the ballot papers was not done properly. He has further deposed that there was neither seal of the distinguishing mark nor the signature of the Presiding Officer on 258 ballot papers of booth No. 35 of village Pathakpagar which was counted at. table No. 7 in the third round of counting and these 258 ballot papers were bearing vote in his favour and initially these ballot papers were counted in his favour but later on these were rejected by the Returning Officer. In his cross-examination he has deposed that his counting agent was present throughout on the counting table on which ballot papers of booth No. 35 were being counted and he was also present in that counting hall. In para 2 of his crossexamination he has categorically deposed that counting of all the rounds except round No. 3 was correct and valid PW 2, Dost. Mohammad, the election agent of the election petitioner, has deposed that counting of ballot papers was not done properly and the Returning Officer has illegally rejected 258 ballot papers of booth No. 35 of the said constituency and all these 258 ballot papers were in favour of the petitioner and these ballot papers were rejected on the sole ground that it did not contain the distinguishing seal of the booth as well as the signature of the Presiding Officer on their back. He has also deposed that he was not present at the counting table where the ballot papers of booth No. 35 were counted and, thereafter, he volunteered and stated that counting agent of table No. 7 told him about the rejection of 258 polled ballot papers orally. PW 3 the counting agent of the petitioner at table No. 7 has deposed that there was irregularity committed in course of counting at count-, ing table No. 7 and 258 ballot papers it favour of the petitioner were illegally rejected in the third round of counting. He has further deposed that he had informed about the said rejection to the election agent of the petitioner. In para 3 of his cross-examination he has deposed that the counting of the ballot papers was done boothwise. In para 5 of his cross-examina-' tion he has deposed that the aforesaid 258 ballot papers which were rejected did not either contain the distinguishing seal and the signature of the Presiding Officer on their back. He has also deposed that PW 2, the election agent of the petitioner informed him that 258 ballot papers polled in favour of the petitioner were rejected by the Returning Officer after the end of the third round- of counting PW 8, Ram Sagar Dubey, the Presiding Officer of booth No. 35 in village Pathakpagar has deposed that under pressure of the crowd he did not put distinguishing seal and his signature on the back of several ballot papers of the said booth and the number of the said ballot papers are between 200-250. RW 41 Madhu Singh, the respondent No. 1 has deposed that after declaration of the fact of his success in the said election by the margin of 37 votes, election petitioner Bidesh Singh has raised "Hungama" inside the counting hall and also raised objection for the counting in o his favour of 258 ballot papers which were rejected during the course of third round of counting. He has further deposed that it is false to say that 258 ballot papers were wrongly rejected. However, in paragraph Nos. 16 and 17 of his cross-examination he has deposed that he did not sit at any counting table during the course of counting when he was in the counting hall and he has also no personal knowledge of the details of the counting of the said Assembly constituency election. In para 20 of his cross-examination he has deposed that he got the entire information regarding the counting of ballot papers through his election agent and counting agents and also through the announcements made by the authorities in respect thereof RW 3, Raj Kishore Singh, the election agent of respondent No. 1 has deposed that entire counting regarding the ballot papers of the said Assembly constituency was conducted properly and there was no irregularity at all in the said counting and it is false to say that there was irregularity in the counting of third round of counting of the ballot papers. RW 4 Baijnath Singh, the counting agent of respondent No. 1 at table No. 7 in the third round of counting has deposied in para 2 of his evidence that in course of third round of counting at counting table No. 7 there were several ballot papers which did not bear the seal and the signature of the Presiding Officer and the number of said ballot papers were 258 and these ballot papers were forwarded to the central counting table of the Returning Officer and these ballot papers were declared invalid. It, therefore, appears from the evidence aforesaid that the ballot papers of booth No. 35 were counted at counting table No. 7 in the third round of counting in which 258 ballot papers were rejected on the ground that these ballot papers did not bear the distinguishing mark of the booth as well as the signature of the Presiding Officer thereon. There is evidence adduced by the petitioner that fhese 258 ballot papers were bearing vote in favour of the election petitioner. The respondent No. 1 did not controvert this fact either in the evidence brought on the record on his behalf or specifically in the averments made in his written statement in respect thereof. Ext. 1 is the order-sheet of the election of 319 Panki Assembly constituency of 2000. The order dated 26.2.2000 (Ext. 5) the copy of which has been handed over to the election agent of the election petitioner read with the final result-sheet (Ext. 4) reveals that the ballot papers of booth No. 35 were counted in the third round of counting and 334 ballot papers were found valid and the remaining 258 ballot papers were rejected on the ground that these ballot papers did not contain the signature of the Presiding Officer thereon. However, the diary of the Presiding Officer (Ext. B) has no reference ¦ therein that under pressure of the crowd the Presiding Officer did not put distinguishing mark of the booth and his signature on the back of several ballot papers of booth No. 35. The absence of any recital of the mistake.or failure on part of the Presiding Officer in its diary (Ext. B) is but natural as it has gone undetected and viewed thus Ext. B has no bearing in this case. I, therefore, hold in view of the evidence referred to above that 258 ballot papers bearing vote in favour of the petitioner in respect of booth No. 35 of the said 318 Panki Assembly constituency were rejected by the Returning Officer on the ground that they did not contain the signature of the Presiding Officer and distinguishing mark of the booth thereon.
15. Now the question arises as to whether the rejection of 258 ballot papers in respect of booth No. 35 of the said 318 Panki Assembly constituency is improper and at the instance of election agent of the, petitioner in view of the certificate of satisfaction bearing the signature of the election petitioner in respect thereof and whether the signature of the election petitioner on the certificate of satisfaction of the third round of counting is genuine. Now I first take-up the matter relating to the certificate of satisfaction. It is pertinent to mention at the very outset that there is no provision either in the said Act or in the said Rules in respect thereof. However, there is an instruction of the Election Commission of India in respect of certificate of satisfaction circulated to all Chief Electoral Officers of all the States and the Union Territories vide Circular No. 470/INST/2000/J.S. II/172 dated 19th June, 2000 and the instruction in respect thereof runs thus :
"..... (v) At the end of each round, a certificate should be obtained from the candidates/from election agents or, in their absence from their Chief Counting Agents that the} ire satisfied in regard to the counting in that round. If anyone has any complaint or doubt with regard to the counting at any counting table, the same she aid be appropriately dealt with and dic-i-ose of then and there.
(vi) The Commission has also prescribed the format of the pertificate to be signed by the Returning Officer. Observers(s) and the candidates/election agents/chief counting agents at the end of each round of counting. A format of the certificate is enclosed."
There is a further instruction of the Chief Electoral Officer- cum-Secretary Cabinet (Election) Department, Government of Bihar vide Circular No. 1960/CEO Patna-, dated 4.10.1999 which reads thus :
"This refers to your letter No. 710/Elec, dated 4.10.1999 seeking clarification on counting procedure enumerated in Election Commission Circular No. 474/99 (INST)/JS dated 1.10.1999 para 10 in particular. In this circular the Election Commission of India has laid down that the result of each round shall be certified by the candidate and the observer and is to be transmitted to the ECI. In this connection, please note that :
(i) In the absence of candidate this can be certified by his counting agent who has been authorized by him.
(ii) RO's are required to announce clearly before the start of the counting about this now provision of the Commission. They should make it clear to the candidate or his agent that each round result is to be certified by them failing which no recounted request will be entertained after the counting is over at the end. You must give full knowledge of this provision to the candidate or his counting agent." (emphasis exercised) Article 324(1) of the Constitution of India mandates that the Superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). Article 324(1) of the Constitution has to be read in the light of the constitutional scheme and the said Act although it operates in areas left unoccupied by legislation and the words "superintendence", "direction" and "control" as well as "conduct of all elections" are in the broadest terms, the Commission armed by Article 324 cannot defy the law nor can it act arbitrarily. It is needless to say that when Parliament or any State Legislature has made the valid law relating to or in connection with election, the Election Commission shall act in conformity with such law but where such law is silent, Article 324 of the Constitution is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition and further the Commission, shall conform to the Rule of law act bona fide and be amenable to the norms of natural justice in so far as conformance to such cannons can reasonably and realistic required of it. The very object of the election law is to protect the verdict of the electorates and also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In the case of Lakshmi Charan Sen and Ors. v. A.K.M. Hassan Uzzaman and others, AIR 1985 SC 1233 relied upon by the petitioner it has been observed by the Apex Court which runs thus :
"....There is no provision in either the Act of 1950 or the Act of 1951 which would justify the proposition that the directions given by the Election Commission have the force of law. Election laws are self contained codes. One must look to them for identifying the rights "and obligations of the parties, whether they are private citizens or public officials. Therefore, in the absence of a provision to that effect, it would not be correct to equate with law, the directions given by the Election Commission to the Chief Electoral Officers. The Election Commission is, of course, entitled to act ex debito justitiae, in the sense that, it can take steps or direct that steps be taken over and above those which it is under an obligation to take under the law. It is, therefore, entitled to issue directions to the Chief Electoral Officers. Such directions are binding upon the latter but, their violation cannot create rights and obligations unknown to the election law."
Learned counsel for the respondent No. 1 has relied upon the ratio of the case of A.C. Jose v. Sivam Pillai and others, AIR 1984 SC 921, Kanhiya Lal. Omar v. R.K. Trivedi and others, AIR 1986 SC 111, and Shaligram Shrivastava v. Naresh Singh Patel, AIR 2003 SC 2128. The Apex Court in para 25 in the case of A.C. Jose, (supra) has observed :
"25. To sum-up, therefore, the legal and constitutional position is as follows :
(a) when there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of election.
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass order in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and rules) in the matter of superintendence, direction and control as provided by Article 324,
(c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of election, and
(d) where a particular direction by the Commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it as its own sweet will even if the approval of the Government is not given."
In the case of Kanhiya Lai Omar, (supra) the Apex Court has observed that :
".....Even if for any reason, it is held that any of the provisions contained in the symbols order are not traceable to the Representation of the People Act or the conduct of Election Rules, the power of the Commission under Article 324(1) of the Constitution which is plenary in character can encompass all such provisions. Article 324 of the Constitution operates in areas left unoccupied by legislation and the words "superintendence", "direction" and "control" as well as "conduct of all elections" are the broadest terms which would include the power to make all such provisions."
The Apex Court has further observed that:
"Any part of the symbols order which cannot traced to Rules 5 and 10 of the Rules can easily be traced in this case to the reservoir of. power under Article 324(1) which empowers the Commission to issue all directions necessary for the purpose of conducting smooth, free and fair elections. While construing the expression" Superintendence, direction and control" in Article 324(1), one has to remember that every norm which lays down a rule of Conduct cannot possibly be elevated to the position of legislation or delegated legislation. There are some authorities or persons in certain grey areas who may be source of rules of Conduct and who at the same time ¦ cannot be equated to authorities or person who can make law, in the strict sense in which it is understood in jurisprudence. A direction may mean an order issued to a particular individual or a percept which many may have to follow. It may be a specific or a general order. One has also to remember that the source of power in this case is the Constitution, the highest law of the land, which is the repository and source of all legal powers and any power granted by the Constitution for a specific purpose should be construed liberally so that the object for which the power is granted is effectively achieved."
In the case of Saligram Shrivastava, (supra) the nomination of one Bhagwant Singh was rejected at the time of scrutiny on the ground that he had not filled up the proforma prescribed by the Election Commission vide letter dated 28.8.1997 whereas the said proforma was required to be filled up to ascertain as to whether the candidate has been convicted or not for any offence mentioned in Section 8 of the said Act and it was contended that since no such proforma was statutorily provided under the provisions of the Act nor under the Rules framed thereunder and the Election Commission would not legislate to provide a proforma and at best it can only be an executive instruction of the Election Commission whereas the petitioner had filed the form prescribed under the Rules which did not suffer from any defect and failure to comply with the executive direction of the Election Commission would not entail the consequences of rejection of the nomination paper much less where it is not provided that failure to fill-up the proforma would result in rejection of the nomination paper. The Apex Court negatived the contention aforesaid and has thus observed :
"......The failure to fill the proforma prescribed by the Election Commission eliciting necessary and relevant information in the light of Section 8 to enquire as to whether the person is qualified and not disqualified and also failing to be present personally or through his representative at the time of scrutiny renders the statutory duty/power of Returning Officer for holding proper scrutiny of nomination paper nugatory. No scrutiny of the nomination paper could be made under Section 36(2) of the Act in the light of Section 8 of the Act. It certainly rendered the nomination paper ¦ suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same."
In view of the tatio of the Apex Court referred to above it becomes cristal clear that where the Act or the Rules are silent, the Election Commission has no doubt preliminary powers under"Article 324 to give any direction in respect of the conduct of election and the said directions are only meant to supplement rather than supplant the law in matter of superintendence, direction and control as directed by Article 324 of the Constitution though the election laws being self contained code the said instruction/directions of the Election Commission are binding for the conduct of the election but their violation cannot create rights and obligations unknown to the election law and the Election Commission is of course entitle to act ex debito justitiae in the sense that it can take steps or direct that steps be taken over and above those which it is under an obligation to take under the law. Thus the instruction of the Election Commission of India in respect of obtaining a certificate of satisfaction from the candidates/election agents or in their absence from their Chief Counting Agents at the end of each round of counting is for the avowed object to safeguard the purity of the election process and for pushing forward a free and fair election. The certificate of satisfaction of all the rounds of counting except round No. 14 of the counting are on the records brought by respondent No. 1. The certificate of satisfaction in respect of third round of counting of votes is relevant regarding the controversy in this case. RW 14 Surendra Ram one of the contesting candidates in the said Panki Assembly constituency has deposed in para 3 of his evidence that after the end of each round of counting a paper was signed by the candidates present there and he has put his signature on the said paper and he has admitted his signature (Ext. A/14 to A/18) on the certificate of satisfaction of 1st, 2nd, 4th, 5th and 7th round of counting of the ballot papers. He has further deposed that he identifies the signature of the election petitioner Bidesh Singh appearing on the certificate of satisfaction of the 2nd, 3rd and 4th round of counting and the said election petitioner has put his signature thereon in his presence and the signatures of the election petitioner was marked as Exts. C/l, C/2 and C/3 respectively thereon. There is evidence on the record to show that the election petitioner was present in the counting hall during the course of the counting. For this evidence of RW 1, RW 2, RW 3, RW 4, RW 7, RW 9 and RW 14 is referred to. The election petitioner in the very first paragraph of his cross-examination has admitted that he was also present in the counting hall. RW 3, a counting agent of respondent No. 1 has deposed in para 2 of his evidence that after the end of counting of each round the Returning Officer used to obtain satisfaction certificate in respect of the counting from all the contesting candidates present there and, thereafter, result of the said round of counting used to be declared. RW 7 has also deposed that after the end of each round at counting a form known as certificate of satisfaction used to be signed by all the contesting candidates present in the counting hall. Similar is the evidence of RW 14 in para 3 and RW 29 in para 1 in their testimony. There is neither averment in the election petition of the election petitioner nor any evidence on the record brought by the election petitioner to controvert the evidence aforesaid regarding the execution of certificate of satisfaction as per the instructions of the Election Commission after each round of counting of the ballot papers. However, P W 1, the election petitioner has admitted the fact that he is aware of the procedure of the counting of the ballot papers that after the completion of counting of each round is notified and prior to that it is signed by the counting agent present there.
16. Now comes the question as to whether the certificate of satisfaction of the third round of counting of votes does contain the signature thereon of the election petitioner or not. PW 1, the election petitioner has deposed that the signature on the certificate of satisfaction of the third round of counting is not as per his pen and the said signature has been marked X for identification. He has further deposed that the signature appearing on the certificate of satisfaction of 1st, 2nd, 4th, 5th, 6th, 7th, and 10th, round of counting are not his signature per his pen and these signatures were also marked as Exts. X/1 to X/7 for identification. However, the election petitioner has admitted that there are signature of his election agent Dost Mohammad on the certificate of satisfaction of 8th, 9th, 11th, 12th and 13th round of counting of the votes which are Ext. A to A/4. PW 2 has deposed in para 4 of his cross-examination that he does not remember as to whether the signature of the petitioner or his authorized agent was obtained on the satisfaction certificate after the end of the counting of the third round though he has admitted his own signatures (Exts. A to A/40) on the satisfaction of certificate of 8th, 9th, 11th, 12th and 13th round of counting of votes. He has further deposed that he identifies the signature of the election petitioner but the signature marked X to X/7 for identification are not the signatures of the petitioner. He has also deposed that none has signed either on behalf of the petitioner or on his behalf on the certificate of satisfaction of the third round of counting - and the signature marked X for identification is not the signature of the petitioner. It, therefore, appears that the election petitioner and his election agent deny the signature of the election petitioner on the certificate of satisfaction of the third round of counting of votes. As against this there is evidence of RW 3 the election agent of respondent No. 1 besides the evidence of RWs 7, 4, 14 and 29. It is relevant mention at the very outset that certificate of satisfaction of the third round of counting of the votes does neither contain the signature of respondent No. 1 or his election agent RW 3. In his evidence RW 3 has categorically deposed that he was not present when the satisfaction certificate of the third round of counting was being prepared and at that time he had gone to take his breakfast though the was present when all other certificate of satisfaction were prepared and signed by the candidates. RW 4, the counting agent of respondent No. 1 at counting table No. 7 has deposed that 258 ballot papers not bearing the seal and signature of the Presiding Officer were forwarded to the Central Counting Table of the Returning Officer where these ballot papers were declared invalid and rejected and some of the contesting candidates including petitioner Bidesh Singh and others were present there and one document was prepared at the central table. He has also deposed that he does not remember the name of that document. Therefore, the evidence of PWs 3 and 4 is not relevant so far the matter in controversy regarding the signature of the election petitioner appearing on the certificate of satisfaction of the third round of counting is concerned RW 7, Gupteshwar Singh one of the contesting candidates in the said election has deposed that he has put his signature (Ext. A/10 and A/11) on the certificate of satisfaction of the first and fourth round of counting of the votes. He has also deposed that all the contesting candidates present there have also put their signature on the certificate of satisfaction. His evidence is further to the effect that election petitioner has put his signature in his presence on the certificate of satisfaction of the .first and fourth round of counting and he identifies the signatures (Exts. A/12 and A/13) of the election petitioner thereon. However, RW 7 is conspicuously silent regarding the purported signature of election petitioner on the certificate 'of satisfaction of the 3rd round of counting. Therefore, his evidence is also of no avail to the contesting respondent to prove the fact that the certificate of satisfaction of 3rd round of counting of the votes cqntains the signature of the election petitioner thereon RW 29 Sahdeo Prasad Singh, the counting agent of respondent No. 5 Sripati Singh has deposed that he has signed the certificate of satisfaction of 5th and 10th round of the counting and he has further deposed that he identifies the sig- ' nature (Ext. C/4 and A/25) of the election petitioner on the certificate of satisfaction of the 5th and 10th round of counting of votes along with the signature of others. However, this witness has not deposed that the election petitioner and others have put their signature in his presence on the certificate of satisfaction aforesaid. In para 3 of his cross-examination he has also deposed that the aforesaid persons whose signature he has identified have not either read or worked with him. As such his evidence has . bearing regarding the matter in controversy in respect of the signing by the election petitioner on the certificate of satisfaction of the third round of counting RW 14 Surendra Ram is one of the contesting candidates in the said election. He has deposed that he has put his signature on the certificate of satisfaction on the 1st, 2nd, 4th, 5th and 7th round of counting of the votes and his signatures are Ext. A/14 to A/18. He has also deposed that all the signatures of the contesting candidates as well as of the election agent appearing on the satisfaction certificate of 2nd, 3rd and 4th round of counting were put in his presence and he identifies the signature of Bidesh Singh appearing on the satisfaction certificate of the 2nd, 3rd and 4th round of counting and said election petitioner has put his signature thereon in his presence.
It is pertinent to mention here that the certificate of satisfaction of the 3rd round of counting does not at all contain the signature of this witness thereon and as such it can safely be said that this witness was definitely not present when the certificate of satisfaction of the 3rd round of counting was prepared and signed by the contesting candidates /election agent or counting agent. Furthermore this witness has deposed not to have read with the election petitioner or worked with him and he is also not the member of the political party with him and as such it is totally ruled out in view of his evidence that he was acquainted with the signature of the election petitioner Bidesh Singh so as to identify his signature on the certificate of satisfaction of the 3rd round of counting RW 42, S.M. Jamil Ahmad is the hand-writing expert and he has deposed to have examined and compared the disputed signatures and the admitted specimen signature of the election petitioner and his report in respect thereof is Ext. D. He has deposed that the disputed signature and the admitted specimen signature are of one and the same person. He has also deposed that he has detailed the reasons for coming to the said opinion in his report. He has been cross-examined at length and several dissimilarity in the disputed signature as well as the admitted specimen signature have been brought to his notice in his cross-examination which he has admitted and he has volunteered that the admitted specimen signature has been brought in existence being conscious of the fact that it is to be examined and compared. It is relevant to mention here that there is total absence of legal evidence on the record brought by respondent No. 1 that election petitioner has signed the certificate of satisfaction of the 3rd round of counting. I have discussed the evidence herein above in detail. It is now well settled that the expert opinion must always be received with great caution and, perhaps, none so with more caution than the opinion of a hand writing expert. There is profusion of precedential authority which holds that it is unsafe to rely upon the expert opinion without substantial corroboration and this rule has been universally acted upon and it has almost become a rule of law. None of the witnesses of the respondent referred to above has corroborated the fact that the election petitioner has put his signature on the certificate of satisfaction of the 3rd round of counting in his presence. In the case of Magan Bihari Lai v. The State of Punjab (1977) 2 SCC 210, relied upon by the petitioner the Apex Court has observed that:
"........The expert opinion must always be received with great caution and perhaps, none so with more caution than the opinion of the hand writing expert. There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law" ".... This type of evidence, being opinion evidence, is by its very ¦ nature, weak and infirm and cannot be itself form the basis for conviction."
Here the evidence of RW 42, the hand writing expert, can never be said to be conclusive because it is after all opinion evidence and it can never take the place of substantive evidence and before action on such evidence it would be desirable to con-3 sider whether it is corroborated either by clear direct evidence or by circumstantial evidence. For the reasons stated above it is unsafe to hold solely on the basis of the opinion of the hand writing expert uncorroborated either by clear direct evidence or by circumstantial evidence that the certificate of satisfaction of the 3rd round of counting of the votes bears the signature of the election petitioner thereon and in this view of the matter the evidence of the expert is equally of no avail to the contesting respondent in this case. Therefore, it cannot be said that alleged signature of the election petitioner on the certificate of satisfaction on the 3rd round of counting is genuine in view of the fact that the election petitioner has categorically denied to have signed the certificate of satisfaction of the 3rd round of counting I, therefore, hold as a question of act that certificate of satisfaction of 3rd round of counting does not bear the signature of the election petitioner thereon. Accordingly, it cannot be said that 258 ballot papers were declared invalid and rejected by the Returning Officer with the consent of the election petitioner and the result-sheet was prepared, accordingly. It is relevant to refer here that RW 4, Baidyanath Singh has deposed that 258 ballot papers which did not bear the seal and signature of the Presiding Officer were forwarded to the Central counting table by the Returning Officer and these ballot papers were declared invalid and there was some objection in respect thereof at the central table and he had gone there. PW 1, the election petitioner has deposed that aforesaid 258 ballot papers were initially counted in his favour but later on these were rejected by the Returning Officer and objection was raised by him orally and also in writing on the day of the counting itself. In view of the evidence aforesaid I see no substance in the contention of the learned counsel for the respondent that at the end of 3rd round of counting since the election petitioner was leading by 16000-17000 votes as deposed by PW 2 (though in fact as per the result sheet the margin of his lead was 7,730) and that was the reason that he has consented for the rejection of 258 ballot papers of booth No. 35 in course of counting of the third round.
17. This now lead us to the core question in controversy which is as to whether 258 valid ballot papers in respect of booth No. 35 of 318 Panki Assembly constituency of the petitioner were improperly rejected by the Returning Officer as alleged in the election petition. Improper reception of votes, refusal or rejection of any votes or the reception of any votes which is void is a ground for voiding the election with the overriding condition that the result of the election in so far as it concerns a Returned Candidate has been materially affected as per Section 100(1)(d)(iii) of the said Act. Section 100 of the Act requires that before an order setting aside an election can be made two conditions must be satisfied. It must firstly be shown that there had been improper reception or refusal of a vote or reception of any vote which is void and secondly it must be shown that as a consequence thereof the Fesult of the election has been materially affected and both the conditions are cumulative and must both to be established and the burden of establishing them is on the person who seeks to have the election set aside Rule-38 (1) of the said Rules mandates that every ballot paper before it is issued to an elector, and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct and every ballot paper before it is issued shall be signed in full on its back by the Presiding Officer. Rule 56 of the said Rules enjoins certain duties upon the Returning Officer which he has to perform. Under this Rule the Returning Officer has to automatically reject certain-classes of ballot papers for not being unconformity with the Rules which are said to be in subclause (2) (a), (b), (c), (d). (e) and (f) and in other cases such as (2) (gl and (h) of Rule 56 the rejection of the aforesaid ballot papers shall depend on his decision whether the conditions for their acceptance have been satisfied. Rule 56 (2) (h) is relevant in this lis. It provides that the Returning Officer shall reject a ballot paper if it does not bear both the mark and the signature which it should have borne under the provisions of sub-rule (1) of Rule 38 of the Rules provided that where the Returning Officer is satisfied that any such defect as is mentioned in clause (h) has been caused by any mistake and failure on the part of the Presiding Officer or Polling Officer, the ballot papers shall not be rejected merely on the ground of such defect. There is a hand book for Returning Officer for the election to the House of the People and State Legislative Assembly issued by the Election Commission of India and the said guidelines are in strict conformity with the said Act and the said Rules. Clause 22 of the said Hand Book deals with the procedure for counting and sub-clause (n) is in respect of ballol, paper which is to be rejected on the grounds enumerated there. Sub-clause (n) provides that the Returning Officer should not reject any ballot paper simply because there is no distinguishing mark and signature provided he is satisfied that the omission has been due to any mistake or failure on the part of Presiding Officer or Polling Officer. There is no dispute regarding the settled principle of law that the instructions in the Hand Book for returning Officers cannot override provision of Statute, Rules or the Orders but here in this case the instructions contained in the Hand Book of the Returning Officer regarding the rejection of ballot papers is inconformity with the said Act and the said Rules. It, therefore, becomes an established proposition of law that a ballot paper which does not bear both the mark and the signature which it should have been borne under the provisions of sub-rule (1) of Rule 38 shall be rejected if the Returning Officer is satisfied that the said defect has not been caused by any mistake or failure on the part of the Presiding officer or Polling Officer. There is no dispute in respect of the fact that 258 ballot papers of booth No. 35 of village Pathakpagar bearing vote in favour of the election petitioner were rejected by the Returning Officer on the ground that these ballot papers did not bear both the distinguishing mark and the signature of the Presiding Officer thereon. Had these 258 ballot papers been not rejected the election petitioner would have secured the majority of the votes if counted in his favour entitling him to be declared as a Returned Candidate. Let us now advert to the evidence on the record PW 1 the election petitioner has deposed that he has lost the election by a margin of 37 votes and the counting of ballot papers was not done properly. He has further deposited that 258 ballot papers of booth No. 35 in village Pathakpagar did not bear the distinguishing mark and the signature of the Presiding Officer thereon in which the vote was exercised in his favour and the counting of these ballot papers was done at table No. 7 in the 3rd round of counting. His evidence is further to the effect that aforesaid 258 ballot papers were initially counted in his favour but later on they were rejected by the Returning Officer and he had orally raised objection in respect of their rejection and, thereafter, in writing on the day of the counting itself. He has also deposed that on proper counting of ballot papers including 258 ballot papers aforesaid he would have been a winning candidate. He has also deposed that counting of all the other rounds except round No. 3 was correct and valid and he has given objection in writing regarding the irregularity in counting regarding the 3rd round of counting but his objection petitioner was not accepted by the Returning Officer who told him that he will receive his objection petition after the verification of the diary of the Presiding Officer in respect thereof and after the completion of the counting of all the rounds his objection petition was received by the Returning Officer but he rejected it. Nothing has been brought in his cross-examination to controvert the fact that 258 ballot papers bear vote in favour of the election petitioner.
PW 2 the election agent of the petitioner has deposed that the counting of the ballot papers was not done properly and the Returning Officer has illegally rejected 258 ballot papers of booth No. 35 and all the these 258 ballot papers were in favour of the petitioner. He has also deposed that these ballot papers were rejected on the sole ground that they did not contain the distinguishing seal as well as the signature of the Presiding Officer on their back. He has also deposed that he had submitted a written objection petition to the Returning Officer in respect thereof which is per his pen and it bears his signature, the photo copy of which has been marked "Y" for identification. Subsequently its original has been brought on the record along with other documents received from the Election Commission. In para 4 of his cross-examination he has again stated that he had made complaints to the Supervising Counting Officer as well as the Returning Officer immediately on getting the said information when 258 ballot papers of booth No. 35 were rejected by the Returning Officer PW 3, the Counting Agent of the election petitioner at table No. 7 in course of the 3rd round of counting has deposed that there was irregularity committed in course of counting at table No. 7 and 258 ballot papers in favour of the petitioner were illegally rejected. He has also deposed that he has informed to the election agent of the election petitioner in respect thereof. He has also deposed in para 7 of his evidence that an application for re-counting of the ballot papers was filed by the petitioner before the Returning Officer before the final declaration of the result. It has not been brought in the cross-examination of PWs 2 and 3 that 258 ballot papers were not bearing votes in favour of the election petitioner. The most important witness in respect thereof is PW 8 Ram Sagar Dubey who was the Presiding Officer at booth No. 35 in village Pathakpagar. He has deposed in para 1 of his evidence that under the pressure of the crowd he did not put the distinguishing mark and his signature on the back of several ballot papers of the said booth. He has also deposed that the number of the said ballot papers are between 200-250. In para 15 of his evidence he has deposed that he came to know from the public that 200-250 ballot papers of the said booth did not contain his signature thereon after the result was announced. Ext. B is the Presiding Officers diary which bears the signature of this witness. Ext. B, however, does not disclose the fact that there was any pressure of crowd at booth No. 35 as a result of which any mistake or failure on his part has occasioned in respect of not putting distinguishing mark and his signature on the aforesaid ballot papers. There is a column No; 25 in the Presiding Officers diary in which a report has to be made by the Presiding Officer in respect of mistake or irregularity, if any, committed at the polling booth but there is no such report of the Presiding Officer mentioned against that column in respect of the mistake or irregularity committed by him due to the pressure of the crowd. However, column 18 of Ext. B gives an inkling of the fact that in the last two hours of the poll 184 voters had exercised their franchise and, therefore, the pressure of the crowd the concerned polling booth in the last two hours of the voting cannot be ruled out. Therefore, I see no reason to discard the evidence of PW 8 that due to his mistake 258 ballot papers of booth No. 35 did not bear the distinguishing mark of the booth and his signature on the back of the ballot papers. Before discussing the evidence of the respondent in respect thereof it is relevant to mention here that there is no evidence at all on the record brought by the respondent to rebut the evidence of PW 8 in respect thereof. Admittedly there were' two Polling Officers posted at booth No. 35 along with PW 8, the Presiding Officer. I see no reason as to why the respondent did not examine either of the Polling Officer of booth No. 35 to controvert the evidence of PW 8 to establish the fact that there was no pressure at all of the crowd at booth No. 35 and the defect has not been caused by any mistake or failure on the part of the Presiding Officer in respect thereof and in this view of the matter the evidence of PW 8 stands unrebutted and there is no reason to discard the evidence of PW 8 RW 41 who was casually present in the course of the counting has deposed that after declaration of the fact of the success in the said election by a margin of 37 votes the election petitioner has raised Hungama inside the counting hall and also raised objection for the counting in his favour of 258 ballot papers which were rejected during the course of 3rd round of counting. He has further deposed that the election petitioner, thereafter, filed a petition before the Returning Officer who passed an order on the said petition that the election petitioner has signed the certificate of satisfaction on the 3rd round of counting and the rejection of 258 ballot papers is legal and valid. RW 41, the respondent No. 1 in his evidence has not stated that the aforesaid 258 papers were not bearing votes in favour of the election petitioner.
Therefore, the admitted position which emerges from his evidence is that 258 ballot papers appertaining to booth No. 35 of village Pathakpagar were rejected at counting table No. 7 in the 3rd round of counting on the ground that these ballot papers did not bear the distinguishing mark of the said booth and the signature of the Presiding Officer thereon as well as that the election petitioner had made objection for the counting of the aforesaid ballot papers in his favour and also filed objection petition RW 3 has deposed that the entire counting regarding the ballot papers was conducted properly and there was no irregularity at all in the counting. He has further deposed that none of the contesting candidates has raised any objection till the completion of the counting of the 14th round. In para 12 of his cross-examination he has further stated that no petition by any of the contesting candidates was filed before the Returning Officer during the course of the counting and further he has denied the fact that there was irregularity committed in course of counting of the 3rd round at counting table No. 7 and on being told the Returning Officer had stated that he will look into the matter after the completion of the counting. The evidence of RW 3 stands contradicted by RW 4 Baidyanath Singh, the counting agent at counting table No. 7 in the 3rd round of counting RW 4 has deposed in para 2 of his evidence that in course of 3rd round of counting at table No. 7 there were several ballot papers which did not bear the seal and signature of the Presiding Officer and the number of such ballots were 258 which were forwarded to the central counting table of the Returning Officer and these ballot papers were declared invalid. He has specifically deposed that there was some objection in respect thereof at the central table and he had gone there. It, therefore, becomes an admitted fact that objection was raised by the election petitioner in the course of 3rd round of counting itself regarding the rejection of 258 ballot papers aforesaid at the instance of Returning Officer RW 2, the counting agent at counting table No. 2 for the respondent No. 1 has deposed that the election petitioner had filed a petition before the Returning Officer on 26.2.2000 in the counting hall on the main table where the Returning Officer was sitting. From the evidence aforesaid it emerges that 258 ballot papers of booth No. 35 were found doubtful in the course of 3rd round of counting at counting table No, 7 on the ground that these ballot papers did not contain the distinguishing mark of the booth and the signature of the Presiding Officer thereon and these 258 doubtful ballot papers were forwarded to the central table of the Returning Officer where these ballot papers were declared invalid and rejected by the Returning Officer. There is admission of RW 4 Baidyanath Singh that there was some objection in respect thereof at the central table where he had gone and this admission clinchingly supports the case of the election petitioner that he had raised objection regarding the unlawful rejection of 258 votes aforesaid in course of 3rd round of counting and thus I see no reason to discard the evidence of the election petitioner that he had given his objection in writing regarding the irregularity in the 3rd round of counting and his objection petition was not accepted by the Returning Officer who told him that t he will receive his objection petition after the verification of the diary of the Presiding Officer in respect thereof. It is equally relevant at this stage to state that the election petitioner in compliance of the instruction and the guidelines of the Election Commission did object regarding the rejection of 258 ballot paper in course of the counting of 3rd round and even if it is assumed that he has put his signature on the certificate of satisfaction of the 3rd round of counting, it shall not be an hindrance to challenge the same by subsequently filing the petition at the end of the counting as per the instruction of the Chief Electoral Officer referred to hereinabove at page 27. I have already referred the case of Lakshmi Charan Sen and others, (supra) in which it has been observed by the Apex Court that the violation of the directions of the Election Commission cannot create rights and obligations unknown to the election law. Here in this case the election petitioner has categorically deposed not to have put his signature on the certificate of satisfaction. Therefore, it cannot be said that the election petitioner stands precluded from challenging the unlawful rejection of 258 ballot papers by filing an objection petition in respect thereof after the end of the counting. It is a well recognized settled principle of law that there is no estopped against the statute.
18. There is evidence on the record that the counting of the ballot papers commenced on 25.2.2000 and it came to an end at 5.00 hours on 26.2.2000. There is also evidence on the record that objection was raised by the election petitioner at the end of 3rd round of counting regarding the rejection of 258 ballot papers of booth No. 35. A petition was admittedly filed by the election agent of the petitioner at 5.00 hours on 26.2.2000 before the Returning Officer stating therein that the ballot papers of booth No. 35 at Pathakpagar did not contain the signature of the Presiding Officer on its back and when a protest was made fx was told by the Returning Officer that '.he matter shall be considered after the perusal of the Presiding Officer's diary anc'j a prayer was made in the said petition to accept the ballot papers of the said booth in favour of the petitioner or in the alternative a fresh election may be conducted there. Rule 63 of the said Rules provides that after the completion of the counting the Returning Officer shall record in the result-sheet the total number of votes polled to each candidate and announced the same and after such announcement has been made, a candidate or in his absence his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes as a whole or in part stating the grounds on which he demands such recount and on such an application being made the Returning Officer shall decide the matter and may allow the application in while or in part or may reject it in toto if it appears to him frivolous or unreasonable and every decision of the Returning Officer in respect thereof shall be in writing and contain the reasons therefore. In exercise of his-rights the written objection petition was admittedly filed by the election agent of the petitioner for recount of 258 ballot papers alleged to be illegally rejected by the Returning Officer appertaining to booth No. 35 at village Pathakpagar. Here again I will refer the proviso of Rule 56 of the said Rules in respect of counting of votes which provides that where the Returning Officer is satisfied with any such defunct in the ballot paper not bearing both the mark and the signature in accordance with sub-rule (1) of Rule 38 have been caused by any mistake or failure on the part of a Presiding Officer or Polling Officer, the ballot papers shall not be rejected merely on the ground of such defect. Thus the petition filed by the election agent of the petitioner in exercise of the powers under Rule 63 of the said Rules is maintainable and is in accordance with Rules. Once an application is filed by the counting agent/election petitioner pointing out the irregularities committed in the course of counting of the ballot papers, the grievance aforesaid in respect thereof has to be redressed immediately but in the said application the basis for making a request for re-counting of ballot paper is required to be disclosed. In such a situation the Returning Officer is statutorily enjoined with a duty to entertain such an application, make an enquiry and pass an appropriate order in terms of Rule 63(3) of the Rules either accepting in whole or in part such requests or rejecting the same wherefor he is required to assign sufficient and cogent reasons. In the event such an application is allowed either in whole or in part the Returning Officer is statutorily empowered to amend the result sheet in form 20 to the extent necessary after such recount and announced the amendment so made by him. It is relevant to mention here that satisfaction of the Returning Officer should be an objective one based upon the materials brought before him and his matter of satisfaction should not be arbitrary or subjective rather it should be based upon adequate material. The satisfaction of the Returning Officer should not be capricious satisfaction but it must be capable of being tested in an objective manner. The Returning Officer rejected the petition of the election agent of the election petitioner vide order dated 26.2.2000 (Ext. 5). It is has been stated by the Returning Officer in the order dated 26.2.2000 aforesaid that 532 votes (wrong figure has been given where as it should have been 592) were cast at polling booth No. 35 which was counted in the third round of counting and 334 ballot papers were found to be valid and the remaining 258 ballot papers were rejected on the ground that these 258 ballot papers did not bear the signature of the Presiding Officer and finding them invalid these ballot papers were rejected. He has further stated in the said order that the counting of the 3rd round was made in presence of the counting agents of the candidates and the said counting was certified to be satisfactory and the certificate of satisfaction also bears the signature of the election petitioner thereon and, thereafter, the result of the 3rd round of counting was declared and when the election petitioner lost the election by 37 votes as per last round of counting the said objection petition was filed and further there was no reference in the Presiding Officer's diary in respect of absence of signature on the aforesaid ballot papers. It is pertinent to mention at this stage that the Returning Officer while rejecting the petition of the election agent of the election petitioner had not adverted to a specific finding as to whether the defect as mentioned in the proviso to clause, (h) of Rule 56 (2) of the Rules has not been caused by any mistake or failure on the part of the Presiding Officer or Polling Officer and no proper enquiry was at all made by the Returning Officer in respect thereof and furthermore the Returning Officer has wrongly rejected 258 ballot papers against the instruction of the Election Commission as well as Rules 56 (2)(h) proviso of the said Rules which are to be counted in favour of the election petitioner. Therefore, the discretion of the Returning Officer in rejecting the objection petition aforesaid has not been legally exercised in accordance with the Rules and thus the order of the Returning Officer stands vitiated and the result of the election in so far as it concerns the Returned Candidate stands materially affected. In this connection learned counsel for the election petitioner has placed reliance upon the ratio of the case of Iqbal Singh v. Gurdas Singh and others, AIR 1976 SC 27, Arun Kumar Bose v. Mohd. Furkan Ansari, AIR 1983 SC 1311 and Hari Shankar Prasad v. Shahid Ali Khan and others, AIR 2003 SC 1302 and has submitted that the Returning Officer has committed a manifest error in rejecting 258 ballot papers aforesaid which bear the vote in favour of the election petitioner and if counted in favour of the election petitioner he would have been the winning candidate and thus the result of.the election declaring respondent No. 1 as a Returned Candidate stands materially affected. In the case of Iqbal Singh, (supra) the Apex Court has observed which runs thus : .
"......Rule 56 was amended in 1972 providing that only a ballot paper which did not contain both the mark and signature would be deemed invalid, but even then it is not as though it automatically became invalid. The Returning Officer had to scrutinize it in order to see whether the ballot paper was genuine ballot paper. This provision was apparently put in because under pressure of work, the Polling Officer might have failed either to affix the stamp or his signature. If the Returning Officer was satisfied that the failure to affix the stamp or the signature was due to the fault of the Polling Officer but the ballot paper was itself genuine he could include it among the valid ballot papers. Therefore, merely by giving evidence that the ballot papers did not contairj both the signature and the stamp it would not be established that the ballot paper concerned was not a valid ballot paper."
In the case of Arun Kumar Bose (supra) 74 ballot papers of the petitioner were wrongly rejected at counting table No. 10 of booth No. 10 on the ground that they did not contain the signature of the Presiding Officer and similarly 31 ballot papers of the petitioner were rejected on different tables on the ground that they did not contain the signature of the Presiding Officer and the aforesaid ballot papers were rejected by the. Assistant Returning Officer in spite of the objection raised by the petitioner and his counting agents. The Apex Court in para 14 has observed that :
"............It was the obligation of the Presiding Officer to put his signature on the ballot papers before they were issued to the voters. Every voter has the right to vote and in the democratic set up prevailing in the country no person entitled to share the franchise can be denied the privilege. Nor can the candidate be made to suffer. Keeping this position in view, we are of the definite view that the present case is one of failure on the part of the Presiding Officer to put his signature on those ballot papers so as to satisfy the requirement of law. The proviso, once it is applicable has also a mandate that the ballot papers is not to be rejected. We, therefore, hold that the ballot papers were not liable to be rejected as the proviso applied and the High Court, in our opinion, came to the correct conclusion in counting these ballot papers and giving credit thereof to the respondent No. 1."
In the case of Hari Shankar Prasad, (supra) the Returning officer had rejected .90 ballot papers which were in favour of the petitioner on the solitary ground that these ballot papers bore thereon the mark made otherwise than by the instrument supplied for the purpose. In this case wrong rubber seal meant for putting distinguishing mark was provided by the Polling staff to the voters and the same continued to be used while casting their votes during the first one and half hours and later on detection of the fault in providing wrong seal it was changed and, thereafter, the ballot papers were marked by the voters by the rubber stamp of cross mark meant for the use by a voter to cast his vote. The Apex Court has thus observed in para 13 which runs thus :
"..... The Election Commission has very clearly instructed to the Returning Officer that if the Presiding Officer or the polling stall" had by mistake supplied the distinguishing mark stamp to voters, the ballot papers so marked should not be rejected. It was further directed "you should, therefore, review the matter and scrutinize those 90 ballot papers on merits and count them in favour of the candidate for whom they are vaiidly marked". The Returning Officer passed the order on 27.2.2000 rejecting 90 ballot papers and declared the result. The Returning Officer in his order dated 27.2.2000 while rejecting the ballot papers observers "I am fully satisfied that it was not due to .fault of the Presiding Officer or polling officer that by mistake distinguishing mark stamp had been given to voters, as other' ballot papers of the same booth had mark made by arrow and crossinstrument". The order does not indicate at all if the Returning Officer had made any enquiry whatsoever from anyone regarding the fact of supply of distinguishing mark stamp by mistake of the Presiding Officer or any of the polling officer. It is nobody's case that all the votes of the polling booth were stamped by wrong stamp. The petitioner's case is that it was only for one and half hours in the beginning that the ballot papers were marked by wrong stamp where after correct stamp was supplied. It is not at all indicated as to on what basis the Returning Officer "felt satisfied" that it was not due to fault of Presiding Officer or any of the polling officer that wrong stamp was supplied. The case of booth capturing has been discarded by the High Court. There has been no such allegation or objection earlier by respondent No. 1. The Returning Officer has not indicated nor shown to have made any effort to find out as to in what circumstances wrong stamp was put on only 90 ballot papers out of the 440 votes polled at booth No. 4.9. The petitioner, to substantiate his case examined PW 5 Awadesh Kumar one of the Polling Officers who was assigned the duty of providing stamp for putting the mark on the. ballot papers. He has very clearly stated that he was entrusted with the duty of making over rubber stamp to the voters and to see that the ballot papers are properly folded and put into the box. He further stated that after about one and half hours the rubber stamp which was provided by the Presiding Officer was taken back saying that it was not the proper stamp and another stamp was given for the purpose. In cross-examination he denied the suggestion that he was making a false statement at the instance of the petitioner, He further told that he is employee of a Bank and did not remember the name of the Presiding Officer but only remembered that he was an employee of Silk Industry department. The reason assigned by the High Court for not accepting the statement of PW 5 is that no other persons was examined to support his statement, does not seem to be a cogent reason. Non-mention of the fact of providing a wrong stamp in the diary of the Polling Officer too, cannot be taken to be a valid reason for not accepting the statement of PW 5. The Polling Officer may or may not have attached any special importance to the fact that initially for some time wrong stamp was used or may have avoided to mention this fact in the diary. The diary and the filling-up of the same, was under his own control. In case wrong stamp was provided by him to the Polling Officer No. 3 who passed it on to the voters, non-mention of this fact by him in the diary would not lead to any inference that no such mistake was committed. Non-mention of such a fact would obviously suit the polling officer. There is a positive statement of the person himself who had provided the stamp to the voters. It was not necessary at all for the petitioner to have examined other polling officers once the statement come from the horse's mouth. The statement of PW 5, is in consonance with circumstances and the plea of the petitioner. The respondent No. 1 could produce the Presiding Officer as his witness to indicate that he had given the correct stamp alone to the Polling Officer No. 3, Awadesh Kumar to be supplied to the voters."
It has further been observed in para 15 that:
"........It is not understandable what enquiry then the Returning Officer actually made in regard to supply of the wrong stamp to the voters, on the basis of which he "felt satisfied" that no wrong stamp was supplied by the polling staff. It is just a bald observation in his order without any enquiry worth the name. The order rejecting the 90 ballot papers is against the instructions and orders of the Election Commission of India dated 26.2.2000 which required the Returning Officer to enquire into the fact if the Presiding Officer or the polling staff had by mistake supplied the distinguishingmark stamp to voters marking the ballot paper and, in case that was so, the ballot papers should not be rejected. Only the Presiding Officer and the polling staff would have been the proper persons from whom the Returning Officer was supposed to have made enquiries but admittedly he failed to do so. The High Court clearly erred in placing much reliance upon the order of the Returning Officer, on reconsideration of the complaint of the petitioner about rejection of 90 voters. Such a report/order which is admittedly based on no enquiry, much less from the concerned persons, who could throw light on the fact, is an order or report based on no material, it is vitiated and liable to be ignored."
The Apex Court has further observed in para 17 which runs thus :
"....... On consideration of all the material available on the record, we find that the wrong stamp was made avail-able to the voters by the polling officer. That being the position', such of the ballot papers marked by the stamp supplied have been wrongly rejected by the Returning Officer and they are to be counted in favour of the petitioner-appellant also as per the directions of the Election Commission. The margin of vote between two contenders is only 35 votes, counting 90 votes in favour of the appellant would provide a lead of 55 votes to the petitioner- appellant who would be entitled for being declared elected."
Relying upon the ratio of the case of P.H. Pujar v. Kanthi Raja Shekhar Kidiyappa and others, AIR 2002 SC 1368, Rajan Kumar Shankarrao Taware v. Ajit Anatrao Pawar, AIR 2002 SC 1554 and Chandrika Prasad Yadav v. State of Bihar and others, AIR 2004 SC 2036 it has been submitted by the learned counsel for respondent No. 1 that the re-count of the votes cannot be ordered in casual manner and it cannot be ordered only because the margin of defeat is meagre and for seeking recount proper foundation is to be laid in the pleadings by setting out material facts and proving the same by adducing requisite evidence. It has also been submitted that the recount cannot be ordered on the. ipse dixit of the election. petitioner and it can be ordered in rare cases where specific allegations are made and proved so as to do complete justice between the parties. In the case at hand it becomes an established fact that as per the evidence on the record read with the ratio hereinabove mentioned relied upon by the petitioner that 258 ballot paper of booth No. 35 admittedly bearing vote in favour of the petitioner were improperly rejected by the Returning Officer on the sole ground that these ballot papers did not bear distinguishing mark of the booth and the signature of the Presiding Officer thereon and on the objection petition being filed no proper enquiry in accordance with Rules was made by the Returning Officer to count these ballot papers in favour of the petitioner and .without adverting to a finding in the order dated 26.2.2000 regarding the mistake "or failure on the part of the Presiding Officer, the Returning Officer rejected the said 258 ballot papers. I therefore, hold in the facts and circumstances of the case in view of the evidence on the record that the Returning Officer has committed a manifest error in rejecting 258 ballot papers aforesaid which has materially affected the result of this election. It is equally relevant, to mention here that the relevant material facts in respect thereof stand averred in the election petition itself. Therefore, the ratio of the case of P.H. Pujar, (supra), Chandrika Prasad, (supra) and Rajan Kumar Shankarrao Taware, are of no avail to respondent No. 1 in this case. It is equally relevant to mention here that the petitioner has got valid cause of action to file an election petition having a prima facie case and it cannot be said that the election petition is not maintainable. I hold that 258 ballot papers admittedly bearing vote in favour of the election petitioner was improperly rejected by the Returning Officer and these ballot papers were not liable to be rejected as per the proviso to Rule 56 (2) (h) of the Rules and these ballot papers are to be counted in favour of the election petitioner which will establish the fact that the election petitioner has secured the majority of votes in the said election. I further hold that due to the non-inclusion of 258 votes aforesaid in favour of the petitioner the result of the election so far as it concerns the Returned Candidate Le. respondent No. 1 has been materially affected. All these issues in view of my finding recorded above are, therefore, decided in favour of the election petitioner and against respondent No. 1.
Issue No. (iv)
20. The case of respondent No. 1 is that the election petition filed by the election petitioner is not in strict compliance of the provisions of Section 83 of the said Act as it is miserably lacking in furnishing adequate statement of material facts within the purview of Section 83(1) and also Conduct of Election Rules and High Court Rules in election matter and it is liable to be dismissed. The further case of the said respondent is that the copy of the election petition served on him is not in accordance with required mandatory Rules of signing, Verification and affidavit though each page of the election petition has been signed by the petitioner but there is no attestation on it to be a true copy of its originals and the annexures have not been attested and verified and duly affidavited in accordance with law and the election petition further does not disclose the serial No, of the ballot papers which are alleged to have been rejected and the failure of the election petitioner in respect thereof entails rejection of the election petition. It has also been alleged that the Returning Officer has not been arrayed as respondent as per the mandatory requirements under Section 82 of the said Act in view of the serious allegations of illegal and corrupt practice alleged against him by the election petitioner and the non-compliance by the petitioner in respect thereof equally entails the dismissal of the election petition. The further case of respondent No. 1 is that no prima facie case stands made out by the election petitioner in view of the averments made in the election petition and the election petition is not maintainable. Under the scheme of the said Act no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter II of Part VI of the said Act. Section 80(A) of the said Act mandates that the Court having jurisdiction to try an election petition shall be the High Court. The election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within 45 days from the date of the Election. Section 82 of the said Act is regarding necessary parties arrayed as respondent in the said election petition. Section 83 of the said Act mandates regarding the contents of the election petition which have to be pleaded by the election petitioner. Section 86(1) of the said Act mandates that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 and Section 117 of the said Act. Section 83 of the said Act is relevant regarding the matter in controversy between the parties which runs thus :
"83 Contents of petition.-(I) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleged including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings :
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also "be signed by the petitioner and verified in the same manner as the petition."
The contention of the learned counsel for respondent No. 1 is that the election petition does not contain adequate statement of material facts as envisaged under Section 83(1) of the said Act so as to constitute cause of action for even making out a prima facie case and the petitioner has to aver in the election petition a concise statement of the material facts on which he relies and the absence of averment of the material facts in the election petition shall entail its dismissal as per Section 86(1) of the said Act. It has further been contended that the copy of the election petition served on respondent No. 1 on 23.3.2001 does not contain the seal of the Oath Commissioner in the verification and affidavit portion which is in violation of Section 83(1)(c) and Section 81(3) of the said Act read with the said Rules as well as of High Court of Jharkhand Rules 2001 in respect thereof. In support of his contention reliance has been placed upon the ratio of the case of Jai Nandan Singh v. Shankar Dayal Singh and others, AIR 1999 Pat 231 and Jai Narain v. Kartar Devi, (1950-88) 7 SC & FB Elec. Cas 355.
21. In contra the learned counsel for the election petitioner has referred several paragraphs of the election petition and specifically the averments made in paragraph Nos. 1,3,4,18 and 19 and has submitted that the entire material facts for the relief claimed have been averred in the election petition and from the materials aforesaid there is a valid cause of action for the election petitioner for the reliefs as claimed. He has also submitted that since there' was no allegation of corrupt practice in the election petition, the compliance of Ruls 94 (A) of the said Rules, therefore, was not necessary at all and there is a proper compliance of Sections 81, 82 and 83 of the said Act. It has also been submitted that the copy of the election petition was duly served upon respondent No. 1 which contains signature of the election petitioner on each page of the election petition and signature and seal of the Oath Commissioner in the verification and the affidavit portions. It has also been contended that the Returning Officer has rejected 258 valid ballot papers containing vote in favour of the petitioner of booth No. 35 at counting table No. 7 of the third round of counting in contravention of Rule 56 (2)(h) proviso of the Rules and his objection petition was also rejected without proper enquiry in contravention of Rule 63 of the said Act and thus the election petition does not suffer from any infirmity or illegality regarding the concise statements of the material facts on which the petitioner relies for the reliefs claimed. It has also been submitted that the averments made in the election petition constitute valid cause of action for the election petition and the election petition does not entail its rejection under Section 86(1) of the said Act. In support of his contention reliance has been placed upon the ratio of the case of Arun Kumar Bose v. Mohd. Furkan Ansari and others, AIR 1983 SC 1311, in which the Apex Court has observed that when the number of wrongly rejected ballot papers were furnished, counting table No. was given and booth no relating to the rejected ballot papers was also disclosed and also the grounds of rejection were pleaded except only the particulars of ballot papers were not shown, the averments made in the election petition do set out material facts and no defect could be found with it and the ratio of this case squarely covers the matter in controversy in this case. Further reliance has been .placed upon the ratio of the case of K. Shardha Devi v. Krishna Chandra Pant and others, AIR 1982 SC 1569.
22. Section 83 of the said Act is mandatory and requires first the concise statement of the material facts and then the full particulars of alleged corrupt practice so as to present the full picture of the cause of action. Here in this case the election petition does contain no allegation of corrupt practice. Therefore, it is not necessary to dilate in respect of "full particulars" of any corrupt practice in this case at this stage. The failure on the part of the election petitioner to aver material facts as required by Section 83 entails the dismissal of the election petition in view of the fact that failure to plead even a single material facts leads to an incomplete cause of action. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts. Where in an election petition a particular fact is material or not and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case: In short all these facts which are essential to clothe the petitioner with a complete cause of action are material facts. In the case of Samant N. Balakrishna etc v. George Fernandez and others etc., AIR 1969 SC 1201, the Apex Court has thus observed :
"..........Section 83 is mandatory and requires the election petition to contain first a concise statement of material facts and then requires the fullest possible particulars. The word "material" shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a, picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. The material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the Section because then the efficacy of the words "material facts" will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. An election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the Sections cannot be said to disclose a cause of action where the allegation is to making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information."
In the case of Jitendra Bahadur Singh v. Krishna Behari and others, AIR 1970 SC 276, the Apex Court has observed thus in para 8 that :
"... The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition."
On the touchstone of the ratio of the aforesaid cases coupled with the ration of the case relied upon by the respective parties it emerges that it is for the petitioner to aver all the material facts constituting the cause of action for the reliefs sought. If allegation is of improper refusal or rejection of vote the ground as to why the rejection was improper should be stated with the further statement that the result of the election was materially affected thereby and it will not suffice merely to say. that a large number of votes so dealt with and even mentioning the number without anything more will not serve the purpose. The supporting materials should be given in the election petition such as filing of the written objection before the Returning Officer against wrongful rejection of any vote the basis of the petitioner arriving at the figures given by him and the details of the rejected ballot papers etc. It is relevant to mention here that non mention of the serial number of the ballot papers does not amount to omission. Let us now advert to the statement made in the election petition to see as to whether the election petition does contain a concise statement of material facts or not on which the petitioner relies for seeking the relief as claimed. The following facts have been distinctly averred in the election petition :
(a) The Returning Officer has illegally and contrary to law rejected 258 valid ballot papers bearing vote in favour of the petitioner on the flimsy ground namely, not containing the signature of the Presiding Officer as well as the distinguishing mark of the booth on those ballot papers though such ballot papers were genuine and were also marked by genuine voters in favour of the petitioner.
(b) The improper rejection of 258 ballot papers of the petitioner related to booth No. 35.
(c) The improper rejection of 258 ballot papers was done in the third round of counting of the ballot papers.
(d) 258 valid ballot papers bearing voting mark by the genuine voters were illegally rejected by the Returning Officer only account of the mistake committed by the concerned Presiding Officer.
(e) Written objection was made to the Returning Officer in respect of the wrongful rejection of those 258 valid ballot papers at the end of the last round of counting by the election agent of the petitioner. ] (f) the said rejection of 258 ballot papers is in contravention of Rule 56 (2)(h) proviso of the Rules and the Returning Officer without proper application of his mind has rejected the said petition and
(g) That the Returned Candidate have own the election by a narrow margin of 37 votes only and if 258 valid votes of the petitioner had not been rejected illegally the petitioner would have been declared elected by a sufficient margin of 221 valid votes and thus result of the election in so far as it concerns the Returned Candidate has been materially affected due to the improper rejection of 258 votes aforesaid.
Relevant documents in respect of those averments have been annexed with the election petition. It, therefore, appears that the election petition thus contain a concise statement of the material facts on which the petitioner relies for the reliefs as claimed and the material facts as averred in the election petition do constitute the cause of action and also a prima facie case. Therefore, there is no infirmity in the election petition as per Section 83 of the said Act.
23. Section 83(c) provides that the election petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of the pleadings. Sub-clause (2) of Section 83 further provides that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is pertinent to mention at the very outset that since there is no allegation of any corrupt practice in the election petition levelled against the Returned Candidate and as such it is not required for the election petitioner to swear an affidavit in the prescribed form in the terms of Rule 94 (A) of the said Rules. Section 81(3) mandates that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be the true copy of the petition. Rule 324 of the High Court of Jharkhand Rules 2001 provides that every election petition shall be accompanied by (i) chalan showing deposit of Rs. 2000/- as required by Section 117 of the Act with cashier of the Court towards security for the costs of the petition; and (ii) as many copies of the petition with copies of Annexures, if any, as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his signature to be a true copy. The object of Section 83(1) is clearly to ensure that each respondent to the election petition gets an identical copy of the election petition as presented in the Court to acquaint him with the actual and full contents of the election petition as it is presented to the Court and on the basis of the identical copy each respondent can prepare his defence and also take the plea of deficiency, if any, in the content of the election petition with reference to Section 83 of the said Act. The question of noncompliance of Section 81(3) of the said Act arose before the Apex Court in the case of Satya Narain v. Dhuja Ram and others, AIR 1974 SC 1185, and the Apex Court has observed that :
"........ The purpose of enclosing the copies of the election petition- for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service or the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented. If there is any halt or arrest in progress of the case of, the object of the Act will be completely frustrated. The first part of Section 81(3) is, therefore, a peremptory provision and total noncompliance with the same will entail dismissal of the election petition."
It appears from the perusal of the election petition that its every page along with the annexures, verification and affidavit stands signed by the petitioner. No material has been brought much less the copies served upon respondent No. 1 on the record to evidence the fact that the said copy served upon him is not in conformity with its original. In Civil Appeal No. 4402 of 2002 filed by the petitioner arising out of this case, the apex Court has finally settled the matter observing therein that :
"........the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. It is not disputed that the petition did not suffer on account of a defect in the requirements of Section 81 or Section 82 or Section 117 and thus the election petition could not have been dismissed for non- compliance of the aforesaid provisions. What is sought to be stated by the Tribunal is that the election petition lacks material facts and that the election petitioner himself has given a certificate to the Returning Officer that the third round of counting of booth No. 35 was correct and, therefore, has disentitled himself to raise any such objection.
The jurisdiction of the Tribunal in terms of Section 86 is limited. The election petition, it is trite, cannot be dismissed at the threshold even for non-compliance of Section 83 of the Act. In Dr. Vijay Laxmi Sadho v. Jagdish, AIR 2001 SC 600, this Court has stated the law in the following terms :
"An election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either the provisions of Section 81 or Section 82 or Section 107 of the Act." The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Thus an election petition is not liable to be dismissed in limine under Section 86 of the Act for alleged non-compliance with provisions of. Sections 83(1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly "defective" affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case."
Thus the election petition does not suffer from any infirmity under Section 83 for liable to be dismissed under Section 86(1) of the said Act. Furthermore, the Returning Officer is neither a necessary party nor proper party under the ambit of Section 82 of the said Act and the election petition does not suffer from any lacunae in respect there-of in view of the settled proposition of law that only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others. The ratio of the case of Jyoti Basu and Ors. v. Debi Ghosal and others, AIR 1982 SC 983, is referred to. I, therefore, see no substance in the contention of the learned counsel for respondent No.. 1 in respect thereof. I, therefore, hold that the election petition does contain a concise statement of all the material facts on which the petitioner relies for the relief claimed and these material facts averred in the election petition constitute a valid cause of action for the same. I also hold that the election petition of the election petitioner is also maintainable. This issue is, therefore, decided in favour of the election petitioner and against respondent No. 1.
Issue Nos. (v) and (vii)
24. The election petitioner in this case has firstly sought relief to set aside the election of the Returned Candidate i.e respondent No. 1 and his subsequent relief a regarding his declaration as elected from the said constituency in place of respondent No. 1 after inspection, scrutiny of 258 improperly rejected ballot papers of booth No. 35 bearing vote in his favour. Section 101 of the Act mandates that if a person who lodged a petition may, in addition to calling in question the election of the Returned Candidate, claim a declaration that he himself or any other candidate has been duly elected and the High Court is, if of the opinion, that in fact the petitioner or such other candidate received a majority of the valid votes or that but for the votes obtained by the Returned Candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the Returned Candidate to be void declare the petitioner or such other candidate as the case may be, to have been duly elected. Section 97 is relevant in this connection which runs thus :
"97. Recrimination when seat claimed.-(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election :
Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do/so and has also given the security aim the further security referred to in Sections 117 and 118 respectively.
(2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner."
Respondent No. 1, the Returned Candidate had filed the recrimination petition. It is relevant to mention here that the recrimination petition must contain a concise statement of the material facts on which the Returned Candidate relies and besides that he has also to set forth full particulars of any corrupt practices that the respondent alleged including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each said corrupt practice and the said recrimination petition shall be signed by the maker or the recrimination petitioner and verified in the manner laid down in the Code of Civil Procedure for the . verification of pleadings and also the said recrimination petition be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It is equally relevant to mention here that if the concise statement of the material facts and the full particulars of any corrupt practice are absent in the recrimination petition as required under the provisions of the Act its non-compliance entitals its non- consideration though the maker of the recrimination petition has the right to amend the recrimination petition for furnishing the full particulars in respect there even after the expiry of the period of limitation. Corrupt practices in relation to an election have been detailed in Section 123 of the said Act. The following are the allegations of corrupt practices mentioned in the recrimination petitioner alleged against the election petitioner :
(a) the election petitioner has criminal antecedent and several criminal cases of serious nature such as under Sections 302, 307 of the Indian Penal Code as well as under the provisions of the Arms Act are lying against him and his associates, brothers, cousins and nephews etc;
(b) that the election petitioner oh the strength of anti-social elements and terrorists used to create panic in the locality and the police officials and other Administrative Officer who used to be transferred in the locality, due to fear or on the strength of money are bound to obey him and used to colude with him;
(c) in course of campaign in the said election the relatives and associates of the election petitioner were found campaigning with arms and ammunition and Pariki P.S. Case No. 6 of 2000 corresponding to G.R. Case No. 136 of 2000 was instituted under the provisions of the Arms Act against Bihari Singh and others and a stolen jeep and country made pistol and cartridges were recovered;
(d) on 12.2.2000, i.e. the date of the poll, a bomb was blasted by the associates and the workers of the petitioner with his consent near village Chunka to create panic in the locality so that voters would not come out of their houses to cast their votes;
(e) the election has captured practically all the booths of Manatu block in collusion with the Officer Incharge of Manatu Police Station and the Block Development Officer of Manatu on a strength of terrorism and succeeded in getting maximum votes at booth Nos. 6, 8, 9, 27, 29, 30, 31 and 32 and at some of the booths the election petitioner has got 80-90% of votes;
(f) that the election petitioner himself was casting bogus votes in his favour on booth No. 9 at village Samri of Manatu block and on the protest of Naresh Ram, a worker of respondent No. 6, he was brutally assaulted by the petitioner and his workers; and
(g) the election petitioner after expending heavy amount has refrained the polling party from fair election and also on his threat the genuine voters were refrained by him and his associates to cast their votes and the election petitioner captured booth Nos. 1, 2, 3, 6, 7, 8, 9, 10, 12, 13, 28, 29, 30, 31, 32 and 33, all of Manatu block.
The election petitioner has denied all the allegations of the corrupt practices aforesaid in his rejoinder to the recrimination petition. It is relevant to mention at the very outset that the allegation of corrupt practice within the meaning of sub-section (1) to (8) of Section 123 of the said Act made in the recrimination petition are regarded quasi criminal in nature for which strict proof is required because of the fact that the consequences are not only very serious but also penal in nature and on the proof of any of the corrupt practice as alleged that the election petitioner has committed corrupt practice, he may be punished for imprisonment under Chapter III of Part VII of the Act and also he may be debarred for contesting the election in future for the specified period as directed. In the case of A. Younus Kunju v. R.S. Unni and others, (1984) 3 SCC 346', the Apex Court has observed that there is total consensus of judicial opinion that a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and the standard of proof is the same as in a criminal case. In the case of M. Narayana Rao v. G. Venkata Reddy and others, AIR 1977 SC 208, the Apex Court has formulated the following principles governing election disputes specially" in regard to the charge of a commission of corrupt practice to be kept in view by the Court :
"(1) That the charge of commission of corrupt practice has to be proved and established beyond doubt like a criminal charge or a quasi-criminal charge but not exactly in the manner of establishment of the guilt in a criminal prosecution giving the liberty to the accused to keep mum. The charge has to be proved on appraisal of the evidence adduced by both sides especially by the election petitioner.
(2) That the election held and results declared on the choice of the voters should not be lightly interfered with or set aside by a Court of law. After all in the holding of a fresh election are involved numerous botherations, tremendous expenses, loss of public time and money and uncertainty of the public representation from a particularly constituency.
(3) A charge of corrupt practice is easy to level but difficult to prove. If it is sought to be proved only or mainly by oral evidence without there being contemporaneous documents to support it, Court should be very careful in scrutinizing the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged.
(4) That the Supreme Court ordinarily and generally does not as it ought not to, interfere with the finding of fact recorded by the High Court unless there are compelling reasons for the same, especially findings recorded on appreciation of oral evidence.
(5) The Supreme Court, however, does not approve of the finding recorded by the High Court on a misreading or wrong appreciation of the oral evidence especially when it is unsupported or runs counter to the contemporaneous documentary evidence.
(6) It must always be borne in mind that the consequences of setting aside of an election on the ground of corrupt practice are very serious for the candidate concerned as well as others involved in it' A Court, therefore, should reach its conclusion with care and caution taking into consideration the broad probabilities, the natural conduct of the persons involved and the special situation in which a corrupt practice is alleged to have been committed."
In the case of Samant N. Balakrishna etc. v. George Fernandez and others etc., AIR 1969 SC 1201, the Apex Court has thus observed :
"......The petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with the consent of the candidate or his election agent, in which case he need not establish what the result of the election would have been without the corrupt practice. If the petitioner does not prove a corrupt practice by the candidate or his election agent or another person with the consent of the returned candidate or his election agent but relies on a corrupt practice committed by an agent other than an election agent he must additionally prove how the corrupt practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt practice on the part of the candidate or his election agent he must face this additional burden."
25. Let us now advert to the evidence on the record RW 42 the Returned Candidates who has filed the recrimination petition has deposed in para 5 of his testimony that there were disturbances during the course of canvassing in the said Assembly constituency but he has not reported in writing regarding the aforesaid disturbances to any of the authorities. This witness, thereafter, volunteered and stated that Bihari Singh, the cousin brother of the election petitioner was apprehended by the police in the said disturbance. No document such as I.I.R. etc. regarding the case in which Bihari Singh, the cousin brother of the election petitioner has been apprehended by the police relating to the said disturbance has been brought on the record by the recrimination petitioner to substantiate the said fact. There is also no whisper in the evidence that the alleged disturbance by Bihari Singh aforesaid has been caused with the consent of the election petitioner or his election agent. There is no contemporaneous document in respect thereof also to establish the said fact. Therefore, the evidence of this witness does not establish the fact that Bihari Singh, the cousin brother of the election petitioner, was apprehended by the police in the said disturbance which was caused with the consent of the election petitioner or his election agent in which the stolen jeep and unlawful arms were alleged to have been recovered from the possession of Bihari Singh aforesaid. This witness has further deposed in para 6 of his evidence that he has sent a Fax message to the Election Commission that there is apprehension that the election petitioner may capture several polling booth disclosing their numbers on 9.2.2000 and in the subsequent Fax message dated 13.2.2000 he has communicated to the Election Con mission regarding the capturing of polling booths at the instance of the election petitioner having found correct in course of election. He has also deposed that the election earlier conducted in two of the polling booths of that Assembly constituency was cancelled and there was re-poll on the said two polling booths. In para 7 of his evidence this witness has deposed that the election petitioner has captured ten polling booths on the day of the election and he has named only six villages in relation to the booths aforesaid, namely, Budhandih, Bhaisasur, Padma.-Bansikhurd, Semli and Duraho. It is relevant to mention here that poll conducted at booth No. 5 situate in village Surguja, booth No. 8 situate in village Kusri, booth No. 57 situate in village Sangwar and booth No. 94 situate in village Pipraikhurd was cancelled and" re-poll was conducted there. This witness in para 7 of his evidence does not name the polling booth of these four villages alleged to have been captured by the petitioner for conducting re-poll there. There is no evidence worth the name in his testimony to substantiate the allegation that the election petitioner has captured booth No. 1, 2, 3, 6,.7, 8, 9, 10, 11, 12, 13, 28, 29, 30, 31, 32 and 33 within Manatu block. Annexure R-l/E to the recrimination petition (Ext. E) does not at all substantiate the allegation in respect thereof. In para 23 of his crossexamination he has deposed that he has not personally seen the capturing of the booths by the election petitioner and his companions rather he got the information regarding the same. There is not a whisper in the evidence of this witness that the bomb blast near village Chunka on the day of the election has been caused by the election petitioner or his associates. Order-sheet of the proceeding of election of 318 Panki Assembly Constituency 2000 of the Returning Officer is Ext. 1 which shows that after the perusal of the diary of the Presiding Officer recommendation was made to the Election Commission for repoll at booth Nos. 5, 8, 57 and 94 and it further shows that election material was destroyed due to the explosion at booth No. 5 situate in village Surguja; ballot papers were dropped in the ballot box by unknown persons at booth No. 8; ballot papers were looted by unknown persons who put the voting mark thereon and put in the election box at booth No. 57 and the ballot papers were snatched and destroyed at booth No. 94. The order of the Returning Officer made in Ext. 1 for re- poll of the aforesaid four booths does not whisper any complicity of the election petitioner or his associates in his consent or with the consent of his election agent in respect thereof. This witness has categorically deposed in para 26 of his evidence that he has not lodged any complaint before the Returning Officer or the Presiding Officer of the said polling booth which was said to have been captured by the election petitioner on the day of the election. The Annexures R-l/a, R-l/b, R-1/c and R-l/d to the recrimination petitioner (Ext. E) are dated 8.2.2000, 9.2.200, 13. 2.2000 and 15.2.2000 respectively and thus these documents cannot be termed as contemporaneous documents to support the allegation of corrupt practices as alleged. Thus the allegation of corrupt practices as mentioned in the recrimination petition in respect thereof does not at all stand substantiated as per the evidence of this witness. In para 11 of his evidence this witness has categorally deposed that he has not disclosed the name of the voters in his recrimination petition who have been intimidated by the election petitioner in course of the said election and its canvassing. It is equally relevant to mention here that this witness in his evidence has not whispered a word regarding any other allegation as alleged against the election petitioner in the recrimination petition. Thus the allegation put forward in the recrimination petition by respondent No. 1 does not at all stand substantiated by any legal evidence as per the testimony of this witness R.W. 3, the election agent of respondent No. 1, does not state a word in his evidence in support of the allegation ' levelled against the election petitioner in the recrimination petition RW 2 has deposed that he has heard the there was explosion in village Dwarika in which Bihari Singh, the cousin brother of the election petitioner was apprehended. He has also deposed that there were some disturbances at isolated places in the said constituency. The evidence of this witness has no relevancy in view of the fact that explosion had taken place at village. Surguja in which the poll materials were destroyed and not at Dwarika. There is nothing on the record brought by the respondent No. 1 to evidence the fact that Bihar Singh was apprehended in connection with explosion in question. There is no specific disclosure of the isolated places having disturbances in the said constituency. Thus the evidence of this witness lacks credence. RW 5 has deposed that there was some dhandhali in course of canvassing in the said election and the election petitioner and his brother Bihari Singh were intimidating the people of Panki Assembly Constituency by show of force and arms and the said incident had taken place in village Dwarika within Panki Assembly constituency in his presence.
He has further deposed that he had seen them intimidating the residents of village Dwarika and they were telling that if they do not vote for him they shall be assaulted and their houses shall be burnt and in the meantime police patrolling party came there and Bihari Singh was arrested with fire arms but the election petitioner had fled away from there along with his three or four friends on Commander jeep. In para 4 of his cross-examination he has deposed that he does not remember the day and date on which he had canvassed for respondent No. 1 in village Dwarika. He has also deposed in para 5 that he does not figure as a witness in the alleged case against Bihari Singh is respect of the incident of village Dwarika. He has further deposed that he has not also given any information to the police regarding the said intimidation at the instance of the election petitioner and his brother Bihari Singh. He has also deposed that he does not remember the time when the said intimidation was made as well as the registration number of the said commander jeep. The facts elicited in the cross-examination of this witness cast a cloud of suspicion to the very credibility of his evidence as deposed in his examination-in-chief an thus his evidence does not at all substantiate the allegations of corrupt practice as alleged against the election petitioner RW 6 has deposed that he was canvassing for respondent No. 1 in village Dwarika and they saw the election petitioner along with Bihari Singh roaming in village Dwarika with arms and they were intimidating the voters of village Dwarika and they were felling them to cast the votes in favour of the election petitioner failing which they shall be assaulted and there was uproar in the said village and police patrolling party came there and Bihari Singh was apprehended and Bidesh Singh fled from there. In his cross-examination he has deposed that.he does not remember the date when he was canvassing in village Dwarika and he also does not figure as a witness in the case against Bihari Singh in respect of the said incident. He has further deposed that he has not given any information to the police in respect of the said incident. Therefore, his evidence is equally not worthy of credit RW 19 has deposed that he was canvassing for respondent No. 1 in village Dwarika on 7.2.2000 and he saw Bihari Singh along with his companions with arms intimidating the villagers of Dwarika and police arrested him. It is pertinent to mention here that this witness does not name the election petitioner present there and his testimony, therefore, belies the evidence of RW 6 and RW 5 in respect thereof. He has also deposed not to have made any written complaint to any authority regarding the said incident in para 6 of his cross-examination and he also does not figure as a witness in the alleged case instituted against Bihari Singh in respect thereof. Therefore, his evidence is equally unacceptable lacking credence therein RW 8 is a hearsay witness in respect of alleged intimidation of the voters of village Dwarika as well as of the apprehension of Bihari Singh by the police and also in respect of booth capturing. Therefore, his evidence has no relevancy. RW 10 has deposed that on the day of the polling he had gone to village Bansi where he had found the miscreant disturbing the polling at the polling booth. He has further deposed that he did not identify anyone out of the said miscreants and the said disturbance was done outside the polling booth. Therefore, the evidence of this witness does not at all connect the election petitioner with the alleged disturbance outside the polling booth in village Bansi and in this view of the matter his evidence has no relevance at all in this case. RW 11 has deposed that he was the polling agent of Madhu Singh at the polling booth in village Budhandih and he was not allowed by the followers of the election petitioner to act as polling agent there and they captured all the ballot papers and after putting marks thereon put those ballot papers in the ballot box. He has further deposed that the election petitioner was also one of them in capturing the said booth. In para 2 of his cross-examination he has deposed to have informed the police at Tarasi O.P. in writing regarding the capture of the said polling booth. He has also deposed that he had informed respondent No. 1 about the said incident in the evening after the end of the poll. Surprisingly enough no authorization letter of this witness for working as the polling agent of respondent No. 1 has been brought on the record to evidence the fact of his presence at the said booth and further the written complaint made to the police at Tarasi O.P. regarding the said incident has also not been brought on the record and in this view of the matter I see no reason to believe his testimony in respect thereof RW 13 and RW 18 have deposed that they were canvassing for respondent No. 3 Paramdeo Singh and respondent No. 1 respectively in village Bhalogari at 15.00 hours on 8.2.2000 and the election petitioner came there and asked the voters not to cast their vote for Rashtriya Janata Dal and further told them to cast their vote for him on his election symbol "tree" failing which they shall be shot dead. It is relevant to mention here that election symbol of the election petitioner is "bus" and not "tree" and thus the evidence of these witnesses appears to be false. They have further deposed that the election petitioner along with his brother Udai Singh and his supporters came to the said village on the day of the election and he forcibly went inside the polling booth and has cast 20-25 votes in the said booth. In their cross-examination they have deposed that they have not made any written complaint regarding the said incident to any authority.
Therefore, the evidence of these witnesses also lacks credence due to the fact as to why they have not informed regarding the said fact to the police as well as the Returning Officer or to respondent No. 3 for initiating action in respect thereof RW 15 claims to be present on the day of the election in the make shift election office of respondent No. 1. He has deposed that Ram Narain Thakur Officer-in-Charge of Tarasi Police Station came there and he caught his hand and asked him to work for the election petitioner and he also intimidated him to falsely implicate him in criminal cases if he does not work for the election petitioner. It is essential to mention here that there is no such allegation in the recrimination petition. He has further deposed that he was confined under a Gulmohar tree near the polling booth for two hours and in the meantime. Dost. Md. Mian, the election agent of the election petitioner came there with his companions and he had a talk with the said Officer-in-. Charge and, thereafter, Dost. Mohammad went inside the polling booth with his companions followed by the said Officer-in-Charge and asked him to stand at the entrance of the polling booth from where he claimed to have seen Dost. Md. Mian casting votes with his companions. The evidence of this witness appears to be highly improbable and unworthy of credit which gives an impression that this witness has been purposely set up by respondent No. 1 to depose in the said manner. In para 4 of his cross-examination he has deposed that he has not made any compliant in writing about the incident to any authority and has also not stated regarding the said incident to any authority earlier prior to his evidence in this Court. In para 5 he has deposed that President of Manatu block of Samata Party has directed him to depose in this case and he has also informed him the matter regarding which he has to depose in this case. In view of the evidence of this witness appearing in para 4 and 5 taken together no reliance can be placed upon his testimony RW 20 claims to be present at primary school of village .Simri polling booth on the day of the election and he was providing identity slips to the voters. His evidence is that Dost. Mohammad, the election agent of the election petitioner came to the said polling booth at 9.30 hours on the day of the election with his companions and he intimidated him and asked him not to canvass and work for respondent No. 1. He has further deposed that he concealed himself under a tree from where he saw Dost. Mohammad going inside the polling booth and, thereafter, Dost Mohammad took ballot papers from the Presiding Officer and they started casting votes continuously for two hours. It is essential to mention here at the very outset that there is no averment in the recrimination petition that Dost Mohammad the election agent of the election petitioner had captured the polling booth at village Simri at 9.30 hours. However, this witness has deposed that he has not made a complaint in writing before any authority regarding the said booth capturing. Therefore, no reliance can be placed on the testimony of this witness in respect thereof RW 21 has deposed regarding booth capturing by Udai Singh along with his four or five companions of the polling booth situate in village Sewaki. He has also deposed not to have reported in writing regarding the said incident either to the Returning Officer, Superintendent of Police, Deputy Commissioner or the Officer-in-Charge of the concerned police station and in this view of the matter his evidence also lacks credence RW 23, has deposed that he was going to canvass along with others for respondent No. 1 on 7.2.2000 in village Lahasi Pagar and the election petitioner along with Bihari Singh in the company of five or six persons came there on a jeep armed with rifle and gun and Bihari Singh came out of the jeep and asked him not to canvass for respondent No. 1 and he also induced him and his companions with a promise to provide money to each of them ® Rs. 2,000/- and on his protest Biharj Singh had intimidated him at the point of gun and this incident had taken place between 8.30 hours and 9.00 hours on 7.2.2000. There is no averment in the recrimination petition in respect of inducing the workers of respondent No. 1 by a promise of payment of money and there is total absence of its material particulars therein. However, this witness in para 3 of his cross-examination has categorically stated that he has not made any written complaint before Panki police station as well as to the Returning Officer in respect thereof. In the absence of any contemporaneous document in respect of the alleged incident no reliance can be placed upon the testimony of this witness RW 25 has deposed that he was intimidated by Bihari Singh in the election office of respondent No. 1 in the house of Bhuneshwar Sao in his village Segalin and asked not to work for respondent No. 1. He has also deposed that Bihari Singh had also told him that he has acquired sufficient land in this village and he will later on help him. There is no averment in the recrimination petition regarding the incident as deposed by this witness. He has 'also deposed not to have lodged any complaint regarding the said incident before the concerned police station or the Returning Officer: Therefore, the evidence of this witness appears to have no relevancy in this case in respect thereof. RW 26 claims to be the polling agent of respondent No. 1 at the polling booth No. 76 in his village Oriya. He has deposed that polling was conducted peacefully and properly till 12.00 hours on the day of the election. He has further deposed that at about 12.00 hours or 12.30 hours the election petitioner with his followers came there on jeep and two motorcycles and they were with fire arms and they came inside the polling booth and the election petitioner confined all the polling agents in the corner of the premises of the polling both at the point of pistol and the election petitioner took the ballot papers from the Presiding Officer and he, thereafter, put polling mark on those ballot papers and his other followers' used to fold the ballot papers and drop the same in the ballot box and the election petitioner with his followers fled away from there on the alarms of the arrival of the patrolling party.
The evidence of this witness was objected to on behalf of the election petitioner. In para 2 of his cross-examination this witness has deposed that he had made a written complaint regarding the said incident to the Patrolling Magistrate who only assured him to forward the same at the appropriate authority but he did not take any step on the basis of the said written complaint. The said written complaint has not been brought in the evidence on behalf of respondent No. 1. The said Patrolling Magistrate also does not figure as a witness in this case. Other polling agents booth No. 76 also do not figure as witness to substantiate the said incident. And last but not the least there is no averment if the recrimination petition regarding both capturing of polling booth No. 76 situate in village Oriya. Therefore, the evidence of this witness has no relevancy at all. RW 27 who was working as polling agent of respondent No. 1 at the polling booth situate at Bedanipur Panchayat Bhawan has deposed that some unsocial persons who had concealed their face came there and intimidated the polling agents and the voters and they captured some ballot papers and after putting polling marks on the same dropped the same in the ballot box. He has further deposed that they were telling to vote on the election symbol "Bus". In his cross-examination this witness has deposed that Officer-in-Charge of Tarasi Police Out Post of his own came there immediately soon after the incident and he was orally informed about the same. He has also deposed that he had informed respondent No. 1 regarding the said incident and has also made oral complaint to the Presiding Officer in respect thereof. He has also deposed that no action was taken on the basis of his oral complaint by the said Officer-in-Charge or by the Presiding Officer as well as by respondent No. 1. It is relevant to mention here that respondent No. 1 in his evidence has not whispered regarding the said incident taking place at the polling booth situate in Bedanipur Panchayat Bhawan. There is also no averment in the recrimination petition in respect thereof. Even Annexure R-l/E does not refer about this polling booth regarding any incident having taken place there. In this view of the matter the evidence of this witness lacks credence. The evidence of RW 28 also lacks credence in view of the fact that he is a hearsay witness. RW 29 has deposed that he was the polling agent of respondent No. 5 at the polling booth situate in village Sangwar. His evidence is further to the effect that the followers of the election petitioner had torn the ballot papers of the said booth and due to that re-poll was conducted there. It appears from the evidence on the record that polling booth at village Sangwar bears booth No. 57. I have earlier referred to Ext. 1, the order of the proceeding of the Returning Officer of the said Assembly constituency in which it has been stated that some unknown persons have looted the ballot papers and after marking votes thereon put the same in the ballot box and they have also poured ink in the ballot box and that was the cause for re-poll at that booth. The order dated 12.2.2000 of the Returning Officer does not give an inkling of the fact that those unknown persons were the camp men or followers of the election petitioner and what was done by them was at the instance or consent of the election petitioner. Thus the generalized evidence of this witness cannot be accepted in view of Ext. 1 RW 30 who claims to be the polling agent of respondent No. 1 at polling booth situate in Bhaisasur has deposed that he along with 20 or 25 voters was not allowed by the polling officer to case their votes. He has further deposed that on his query the polling officer told him that the election petitioner has directed him that the voters should not exercise their franchise at this booth. It is pertinent to mention here that there is no such allegation in the recrimination petition of respondent No. 1 and thus the evidence of this witness is against the averments made in the recrimination petition. Furthermore the polling officer of the said polling both has not been examined on behalf of respondent No. 1 to corroborate the evidence as deposed by RW 30. This witness has further deposed that the election petitioner had come to the said polling booth and on his direction the Officer-in-Charge of Manatu P.S. had brought the ballot box from the said booth to Padma Chowk. I had earlier referred to the evidence of RW 41 in which he has stated regarding the booth capturing by the election petitioner of the polling booth situate in village Bhaisasur. The polling booth No. 31 is at village Bhaisasur. Here I will refer once again Annexure R-1 /E which is the part of Ext. E which shows that there is nothing adverse stated in the Presiding Officer's Diary regarding the conduction of election at booth No. 31. This witness has also deposed that he did not make any complaint to the authorities in respect thereof. It does not stand to reason as to what prevented this witness not to make' any -complaint regarding the said incident of the alleged booth capturing to the Returning Officer or to the Presiding Officer or the Patrolling Magistrate.
In the absence of any contemporaneous document in respect thereof the evidence of this witness is fit to be brushed aside. RW 35, the polling agent of respondent No. 1 at the polling booth No. 28 situate in village Bansipur has deposed that when he was handing over the required form to the Presiding Officer for working as polling agent at the said polling booth, Dost Mohammad with his companions came there and he took the said form from him and tore it and confined him in the premises of the said polling booth. There is no averment in respect thereof in the recrimination petition. He has further deposed that the Presiding Officer started handing over the ballot papers to Dost mohammad one by one and he used to put mark thereon and, thereafter, he handed over the ballot papers to his companions who after folding the same dropped them in the ballot box and all these ballot papers were marked for the election petitioner on his election symbol and when police camethere Dost Mohammad along with his companions fled away from there. In para 7 of his cross-examination he has deposed that he had made a written complaint to the police when it arrived at the said polling booth. The said written complaint has not been brought on the record to corroborate the testimony of this witness. The said police officer or other polling agents of the said booth or the Presiding Officer or Polling Officer of the said booth has not taken oath in this case to corroborate his testimony. He has also deposed that he has not made any written complaint to any other authority in respect thereof. He is also conspicuously silent in his evidence regarding giving information of the said incident to respondent No. 1. Annexure R-l/E shows that the report of the Presiding Officer of the said booth in his diary has not made any reference in respect of the alleged incident as deposed by this witness. Thus his evidence also lacks credence and cannot be relied upon. The evidence of RW 36 has no relevancy in this case as there is nothing in his evidence in support of the allegation contained in the recrimination petition. Evidence of RW 37 is to the effect that in course of canvassing at village Dwarika, he was asked by the villagers not to canvass for his candidate in their village. Therefore, his evidence is also no relevant regarding the matter in controversy. RW 38 has deposed that he was not allowed to canvass for respondent No. 1 in village Chaura by the residents of the said village. He has further deposed that polling was not properly held at the polling booth as some of the persons present there used to intimidate the voters and pressurize them to vote on the election symbol "Bus". In his cross-examination he has deposed that he was not the polling agent at the said polling booth and he has also not lodged any written complaint in respect thereof either to the Presiding Officer or to the Patrolling Magistrate or the Returning Officer. Therefore, his evidence has no relevancy in this case. RW 39 has deposed that he had canvassed for respondent No. 1 in his village Bhunyakhuraha and also in village Chandarpur and the canvassing was peacefully and he was present at the polling booth issuing identity slips to the voters and the election was held properly and peacefully on the said polling booth. Therefore, his evidence does not support the allegations made in the recrimination petition. Naresh Ram, the worker of respondent No. 6 has not taken oath in this case for respondent No. 1 to substantiate the fact that he was assaulted brutally by the election petitioner and his workers when he had protested to them while casting bogus votes on booth No. 9 at Simri of Manatu block. He is the most competent and natural witness to that effect. Therefore, an adverse inference has to be drawn due to non-examination of Naresh Ram aforesaid against the case as averred in the recrimination petition. Annexure R-l/E which is the part and parcel of the recrimination petition Ext. E shows that no untoward incident had ever taken place at booth No. 9 situate in village Simir. Therefore, there is no iota of legal evidence on the record to substantiate the allegations of corrupt practices levelled against the election petitioner in the recrimination petition as mentioned in sub-paragraph Nos. (a) to (g) at page 64 and 65 herein above PW 1, the election petitioner in his evidence has denied the allegations levelled against him in the recrimination petition. He has specifically deposed that no criminal case was instituted against him during the course of the said election as well as existence of any relationship whatsoever either with the Block Development Officer, Manatu or Officer-in-Charge Manatu Police Station. He has also deposed that there had been a landmine explosion at village Chunka on 12.2.2000 in which the Presiding Officer has died and some of the constables have received" injuries on their person and in spite of that the voters at booth Nos. 6, 8, 9, 27, 29,; 30, 31 and 32 situate within the radius of 15 kilometers from the explosion site had exercised their franchise on these booths. He has also denied the fact that he has assaulted Naresh Ram at booth No. 9. It is the well settled proposition of law that the charge of commission of corrupt practice has to be proved and established beyond doubt like the criminal charge or a quasicriminal charge but not exactly in the manner of establishment of the .guilt in a criminal prosecution giving the liberty to the accused to keep mum and the charge has to be proved on appraisal of the evidence adduced by both sides specially by the maker thereof and if it is sought to be proved only or mainly by oral evidence without there being contemporaneous documents to support it, the Court should be very careful in scrutinizing the oral evidence and should not lightly accept unless the evidence is credible, trustworthy, natural and showing without doubt the commission of corrupt practice as alleged. Here in this case there is no contemporaneous document brought on the record by respondent No. 1 to substantiate the charge of corrupt practice as alleged by him in the recrimination petition. The witnesses who.have taken oath for respondent No. 1 in respect thereof are also partisan and interested witness being the camp men of respondent No. 1. l have carefully and cautiously scrutinized their evidence and dealt with the same hereinabove in detail. Their evidence does not, stand supported by any contemporaneous evidence. The apprehension of respondent No. 1 as contained in the Fax message sent to the Election Commission and other authorities how so ever great cannot take the place of proof in the absence of contemporaneous document to establish the same. I, therefore, hold in view of the evidence on the record that the charges of corrupt practice levelled against the petitioner do not at all stand substantiated beyond reasonable doubt.
26. A recriminatory proceeding duly taken under Section 97 of the said Act read with Section 83 is in fact a counter petition presented by the Returned Candidate or any other party to the petition. The right to file recrimination accrues to the Returned Candidate or any other party to the petition the moment an election petition is presented containing the claim for further declaration that the petitioner himself or any other candidate has been duly elected. As required by Section 83 of the said Act the particulars of corrupt practice are to be given in full including as of full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each of such corrupt practices. It also provides that an election petition shall contain a concise statement of the material facts and it shall set forth full particulars of any corrupt practices which the recrimination petitioner alleges. It is also necessary that the recrimination petition must be accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice and the particulars thereof. The object behind this is to enable the other side to meet those allegations and the full particulars of the corrupt practices must be such as not to turn the enquiry into rambling and roving inquisition. In this case it is imperative on the part of respondent No. 1 to aver giving full particulars of the corrupt practices committed by the election petitioner or his election agent or by any other person with his consent or his election agent and to establish the said fact beyond reasonable doubts. Here once again I will refer to the evidence of RW 41 who is the Returned Candidate. He has admitted in para 10 of his cross-examination that the recrimination petition filed by him is not supported by an affidavit in Form 25 as per Rule 94 (a) of the Rules read with Section 83 of the said Act. His evidence is further to the effect in para 11 of his crossexamination that he does not remember as . to whether he has disclosed the name of the voters in his recrimination petition who have been intimidated by the election petitioner in course of the said election and its canvassing. The recrimination petition does not contain the name of the voters of this constituency who are alleged to have been intimidated by the election petitioner in course of the said election and its canvassing. The recrimination petition also does not contain the full particular of the corrupt practices alleged therein. Therefore, the recrimination petition suffers from infirmity in respect thereof and I am fortified in my view as per the ratio of the case of Chandrashekhar Singh v. Sarjoo Prasad Singh and another, AIR 1961 Pat 189, in which the Division Bench of the Patna High Court has thus observed :
"........The use of the word 'including' in clause (b) of Section 83(1) indicates that the names of the parties alleged to have committed the corrupt practice should be deemed to be one of the particulars required to be given but that does not mean that it exhausts the list of the names of parties to be given, it only explains and specifies some of them. Under Section 123(2) it is provided that, if any candidate or his agent threatens any elector with injury of any kind, he shall be deemed to have interfered with the free exercise of the electoral right. The particulars of corrupt practices necessarily include the names of the electors alleged to have been subjected to such corrupt practices. Therefore, the election petition which does not set out the names of such voters suffers from an incurable infirmity in this regard, and the charge is bad on this ground alone."
In para 24 of his cross-examination RW 41 has further deposed that he has not disclosed in the verification as well as in the affidavit annexed with his recrimination petition regarding his sources of information in respect of the facts stated therein. RW 41 is also conspicuously silent in his evidence regarding the corrupt practice as alleged by him against the election petitioner having been committed by other persons with the consent of the election petitioner or his election agent. Therefore, the recrimination petition suffer from infirmities and the same is not in accordance with Section 83 of the Act read with the relevant Rules in respect thereof. It is relevant to mention at this stage that the election petitioner had earlier filed an application for summary dismissal of the recrimination petition raising preliminary objection for non- compliance of Sections 81 and 83 of the said Act read with Order VI, Rule 16 and Order VII, Rule 11 of the CPC. The respondent No. 1 had filed a rejoinder to the said petition and this Court vide order dated 31.8.2001 have been pleased to reject the application of the election petitioner and held that the recrimination petition is not barred by the law of limitation and it is also maintainable and has further held that there appears no defect whatsoever in the recrimination petition to be thrown out at the threshold. It appears that for coming to the finding for not dismissing the recrimination petition in limine for want of particulars reliance was placed upon the ratio of the case of Balwan Singh v. Sri Lakshmi Narain, AIR 1960 SC 770, and the ratio of this case was referred in para 13 of the order dated 31.8.2001. For proper appreciation I quote para 13.
"....The Constitution Bench in Balwan Singh v. Sri Lakshmi Narain, AIR 1960 SC 770, held that an election petition shall not liable to be dismissed in limine merely because full particulars of a corrupt practice alleged were not set out. It was observed that if an objection was taken and the Tribunal was of the view that particulars had not been set out, the petitioner had to be given an opportunity to amend or amplify the particulars and that it was only in the event of non-compliance with the order to supply the particulars, the charge could be struck-out. Thus, in such parameter also, the recriminatory petition cannot be held that there is no cause of action."
It is relevant to mention here that in spite of the objection raised by the election petitioner no attempt was ever made to amend the recrimination petition or amplify the full particulars of the corrupt practice at the instance of respondent No. 1 which has definitely caused serious prejudice to the petitioner in refuting the said allegations. I have also discussed above the evidence of the witnesses threadbare and also the evidence of the recrimination petitioner i.e. respondent No. 1 It appears that the scenario has now changed after the evidence on the record brought by the parties. In the case of Balwan Singh, (supra) it has also been observed by the Apex Court that :
".....Insistence upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition, but if, the parties go to trial despite the absence of full particulars of the corrupt practice alleged, and the evidence of the contesting parties is led on the plea raised by the petitioner, the petition cannot, thereafter, be dismissed for want of particulars because the defect is one of procedure and not one of jurisdiction of the Tribunal to adjudicate upon the plea in the absence of particulars. The Appellate Court may be justified in setting aside the judgment of the Tribunal if it is satisfied that by reason of absence of full particulars material prejudice has resulted, and in considering whether material prejudice has resulted, failure to raise and press the objection about the absence of particulars before going to trial must be given due weight."
In view of the ratio of the case of Balwan Singh, (supra) it is true that the recrimination petition cannot be dismissed in limine but in spite of the defects having been brought to the notice of the recrimination petitioner and no steps having been taken to bring the full particulars by amendment of the corrupt practices alleged, the recrimination petition has resulted causing material prejudice to the election petitioner in this case and in this view of the matter the recrimination petition cannot be said to be maintainable. I, therefore, hold in view of the evidence on the record discussed above that the recrimination petitioner, i.e. respondent No. 1 has failed to substantiate the charge of corrupt practices levelled against the election petitioner in this case by legal and reliable evidence on the record and the recrimination petition is also not maintainable in the facts and circumstances of this case. Thus, both the issues are decided against the recrimination petitioner i.e. respondent No. 1 and in favour of the election petitioner.
Issue No. (viii)
27. I have already held above that it is an established fact as per the evidence on the record that 258 ballot papers of booth No. 35 were admittedly bearing vote in favour of the petitioner which was improperly rejected by the Returning Officer on the sole ground that these ballot papers did not bear distinguishing mark of the booth and the signature of the Presiding Officer thereon and on the objection petition being filed no proper enquiry in accordance with Rules was made by the Returning Officer to count these ballot papers in favour of the petitioner and without adverting to a finding in the order dated 26.2.2000 regarding the mistake or failure on the part of the Presiding Officer, the Returning Officer improperly rejected the said 258 ballot papers. It is relevant to mention at this stage that the physical verification or inspection of 258 ballot papers aforesaid in the facts and circumstances of this case do not arise and is equally not relevant in view of the admitted fact that these 258 ballot papers bear vote in favour of the election petitioner. I have further held that the Returning Officer has committed a manifest error in improperly rejecting 258 ballot papers aforesaid which has materially affected the result of this election which were not liable to be rejected as per the proviso to Rule 56 (2) (h) of the Rules and these ballot papers are to be counted in favour of the election petitioner which will establish the fact that the election petitioner has secured the majority of votes in the said election. It has also been held above that due to the noninclusion of 258 votes aforesaid in favour of the petitioner the result of the election so far as it concerns trie Returned Candidate i.e. respondent No. 1 has been materially affected. It has also been held that the election petition does contain the concise statement of material facts constituting a cause of action and making out a prima facie case of the petitioner and the election petition is maintainable. It has also been further held that allegations of corrupt practice levelled against the election petitioner in the recrimination petition do not stand established beyond all reasonable doubts. Thus the election petitioner is entitled for the reliefs claimed.
28. The election petition is hereby allowed and the election of the Returned Candidate i.e. respondent No. 1 is declared void and is set aside. The recrimination petition of respondent No. 1 is dismissed and the petitioner is declared duly elected from 318 Panki Assembly Constituency of Bihar Legislative Assembly (now Jharkhand) having received a majority of valid votes. The parties shall bear their costs in the facts and circumstances of this case.
29. Let the substance of this judgment be intimated to the Election Commission of India and the Speaker of the Jharkhand Legislative Assembly forthwith for information and needful. Let an authenticated copy of this judgment be also sent forthwith to the Election Commission of India for the needful.