

S.B. Sinha, J.

1. To what extent an election tribunal should exercise its jurisdiction to direct inspection of the ballot papers and recounting of votes polled while determining an election petition in terms of the provisions of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act', for the sake of brevity) is in question in this appeal which arises out of a judgment and order dated 07.11.2002 passed by the High Court of Judicature at Madras in Election Petition No. 7 of 2000.

BACKGROUND FACTS :

2. An election took place for Karur Parliamentary Constituency (26) consisting of six assembly segments on 05.09.1999. Eleven candidates contested the said election. Total number of votes polled was 719705 and the appellant herein who is the returned candidate having the election symbol of 'two leaves' secured 334407 votes whereas Respondent No. 1 herein (the election petitioner) who contested the said election on the election symbol of 'rising sun' secured 331560 votes. The margin of votes between the returned candidate and the election petitioner was, thus, 2847.

3. It is also not in dispute that 16906 votes were rejected. The chief election agent of the election petitioner on or about 06.10.1999 lodged a complaint alleging irregularities in counting of votes. The said counting of votes took place on 6.10.1999 and the result thereof was declared at 5.10 A.M. on 7.10.1999.

4. The relevant portion of the said complaint reads thus :

"Today (6.10.1999) during counting of the votes in all the Six Segments of Karur parliamentary constituency about 15,000 votes polled in Rising Sun Symbol of the Candidate K.C. Palanisamy has been rejected in violation of the Act and Rules without reason by the Assistant Returning Officers. The oral and written objections raised by the Agents were not accepted. So our candidate winning prospect was prevented.

In Election each and every vote is important and even one vote difference decides the result. Therefore, I kindly request you to recount the rejected invalid votes and thereafter election result may be declared."

5. It is also not dispute that upon holding an inquiry in relation to the aforementioned complaint (Ex.P9), the returning officer who examined himself as CW1 rejected the same holding :

"...The Assistant Returning Officer who were incharge of the Counting of Ballot Papers in all the 6 Assembly Segments comprised in 26 Karur Parliamentary Constituency were enquired about the issue raised by the Objection Petitioner. All of them have reported that they have decided the rejected Ballot Papers only in the presence of the Counting Agents deputed by the contesting Candidates for this purpose, and the decisions were taken only in the presence of such counting Agents and with their concurrence. No one raised any objection to the decision taken by Assistant Returning Officers in the matter of rejection or Ballot Papers. In fact, all of them had appreciated the fairness in the rejection of Ballot Papers by the Assistant Returning Officers. The Assistant Returning officers have stated that no Objection Petition was presented to them at the time of Counting over the Rejection of Ballot Papers. Even the Poll Observers deputed by the Election Commission had been campaigning in the Counting centers and no Objections were made to them over this issue. The Objections were analysed to find out whether they are substantiated. It is brought to my notice by the Assistant Returning Officers that most of the Ballot Papers were rejected on the ground "No Marking" and "Multiple Voting". The analysis of the votes polled and Votes rejected during the present Poll and the previous polls reveals that the total rejected votes during the previous poll was 25,292 as against the total valid votes of 6,49880 whereas the Ballot Papers rejected in the present election is only 16,906 as against the total valid Votes of 7,19,705.

I find no reason to Order Recounting of rejected Ballot Papers as requested by the Petitioner and accordingly his request is rejected."

6. The election petitioner thereafter filed the election petition before the High Court which was marked as Election Petition No. 7 of 2000. Besides raising a question of corrupt practice, allegations, were also made as regards irregularities in counting of votes, which were divided in five different heads, namely :

Category 1 : Rejection of valid votes cast in favour of the petitioner by considering inadvertent thumb impression.

Category 2 : Rejection of valid votes on the basis of Polling Officer's rubber stamp impression found on ballot paper apart from voter's instrument mark.

Category 3 : Rejection of valid votes cast on border.

Category 4 : Rejection of valid votes on ground that wrong instrument used by voter

Category 5 : Rejection of postal votes cast in favour of the petitioner.

7. Evidences were led to the effect that the number of votes which are alleged to have been illegally rejected in Category-1 : 750 votes; in Category-2 : 250 votes; in Category-3 : 1500 votes; in Category-4 : 5000 votes and in Category-5 : 300 votes.

8. The allegations made in the election petition were denied and disputed by the elected candidate. He further raised a plea that the allegations made in the said election petition as regard illegal rejection of votes suffered from vagueness. It was pointed out that no particulars had been disclosed in the election petition as to at which center and at what time the alleged irregularities took place. The details of the tables at which the objections were raised had also not been disclosed. Even the names of the counting agents had not been mentioned in the election petition.

9. Such objections had been raised having regard to the fact that the Parliamentary Constituency consisted of six assembly segments and the counting was done at four different centers. It had further been contended that the election petition also does not disclose as to how and in what manner the provisions of Sub-rules (3) and (4) of Rule 55 of the Conduct of Election Rules, 1961 had been breached.

ISSUES :

10. On the pleadings of the parties, the High Court framed, inter alia, the following issues :

(1) Whether the petitioner has proved acts of serious irregularities in the manner of conduct of election and or in the counting of votes vitiating the entire election process as well as results?

(2) Whether the first respondent and/or his agents are guilty of corrupt electoral practices or electoral malpractice contemplated under Section 123 of the Representation of the People Act, 1951?

(3) Whether the petitioner is entitled to an order of scrutiny and recounting of the ballot papers in respect of No. 26, Karur Parliamentary Constituency as sought in prayer No. (i) of the Election Petition?

HIGH COURT 