1996 (2) TMI 539 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of the votes polled in favor of the appellant.
2. Proper procedure for comparing disputed signatures.
3. Impact of void votes on the election result.

Detailed Analysis:

1. Validity of the Votes Polled in Favor of the Appellant:
The election of the appellant to the Kerala Legislative Assembly from Edakkad constituency was challenged on the ground that a large number of void votes were illegally cast and received, which materially affected the election result. The High Court found that 269 votes were void under Section 62(4) of the Representation of the People Act, 1951, and 39 votes were cast by impersonation under Section 62(1) of the Act. Consequently, the High Court declared these votes void and invalid under Section 100(1)(d)(iii) of the Act. The High Court ordered the opening of ballot boxes to examine the ballot papers, which revealed that 306 of the void votes were polled in favor of the appellant. After deducting these votes, the appellant was found to have secured fewer votes than the first respondent, leading to the setting aside of the appellant's election and the declaration of the first respondent as duly elected.

2. Proper Procedure for Comparing Disputed Signatures:
The High Court compared the signatures on the counterfoils to determine whether the same person had voted more than once. The learned Judge compared the signatures himself, without the aid of an expert, which was contested by the appellant. The Supreme Court found that the learned Judge erred in taking upon himself the task of comparing the disputed signatures without the assistance of an expert or the evidence of persons conversant with the disputed signatures. The Court emphasized that the comparison of disputed signatures should be done with admitted signatures and that the prudent course is to obtain the opinion and assistance of an expert. The Supreme Court cited precedents, including State vs. Pali Ram (AIR 1979 SC 14) and Fakhruddin vs. State of Madhya Pradesh (AIR 1967 SC 326), which caution against judges comparing disputed signatures without expert assistance.

3. Impact of Void Votes on the Election Result:
The Supreme Court noted that the High Court's findings were based on insufficient materials and evidence. Many witnesses denied voting more than once and denied their signatures on the counterfoils. The Supreme Court found that the learned Judge's approach was not in conformity with the spirit of Section 73 of the Evidence Act. The High Court's decision to declare 269 votes void based on the comparison of signatures by the Judge himself was found to be erroneous. The Supreme Court concluded that at least 130 votes, which were declared void by the High Court, should be considered validly polled in favor of the appellant. This would result in the appellant securing 43 votes more than the first respondent.

Conclusion:
The Supreme Court held that the learned Judge was not right in declaring the election of the appellant as void and declaring the first respondent as duly elected. The appeal was allowed, and the Election Petition was dismissed with costs throughout.