2012 (2) TMI 489 - SC - Indian Laws

Whether the EVMs were illegally removed? Whether any election offence of booth capturing and criminal intimidation was committed? Whether the election was liable to be declared void under Section 100 of the Representation of the People Act 1951? Whether the first respondent was entitled to be declared as duly elected?

Summary

Issues Involved:
1. Allegations of booth capturing and corrupt practices.
2. Double voting and impersonation allegations.
3. Request for production of voters' counterfoils (Form 17A) from 38 polling stations.

Detailed Analysis:

Allegations of Booth Capturing and Corrupt Practices:
The appellant and respondent No. 1 contested the election to the Arunachal Pradesh Legislative Assembly, where the appellant was declared elected. Respondent No. 1 challenged this election on grounds of corrupt practices, specifically booth capturing, alleging that party workers of the appellant illegally removed EVMs and cast votes in favor of the appellant, preventing common voters from exercising their rights. The High Court framed necessary issues, including whether booth capturing occurred and if the election should be declared void under Section 100 of the Representation of the People Act, 1951.

Double Voting and Impersonation Allegations:
Respondent No. 1 filed an interlocutory application claiming that voters from eight polling stations had double entries in 38 polling stations of another constituency and had cast their votes there instead. This was initially rejected by the High Court. During evidence, respondent No. 1 reiterated these claims but admitted he had not raised these issues in the original petition and did not object to the electoral rolls when they were published. The High Court later allowed a second application to call for the records of voters' counterfoils from the 38 polling stations, considering double voting and impersonation as facets of booth capturing.

Request for Production of Voters' Counterfoils (Form 17A):
The appellant opposed the second application, arguing it was a fishing inquiry and that the respondent No. 1 did not provide sufficient material facts or evidence of double voting or impersonation in the original petition. The Supreme Court noted that the original petition did not include allegations of double voting or impersonation, and no issue was framed on this ground. The Court emphasized that in election petitions, material facts must be pleaded at the outset, and failure to do so is fatal. The Court also highlighted that booth capturing involves force or intimidation, whereas impersonation involves deception, and these are distinct grounds under the Act.

Consideration of Rival Submissions:
The Supreme Court found that the first respondent failed to provide specific instances or evidence of booth capturing or impersonation. The Court held that allowing the second application for additional records was erroneous as it amounted to a fishing inquiry. The requirement for production and inspection of election papers under Rule 93 of the Conduct of Election Rules, 1961, was not met, as the first respondent did not lay a proper foundation for such an order.

Conclusion:
The Supreme Court quashed the High Court's order allowing the second application for the production of voters' counterfoils, emphasizing the need for specific pleadings and evidence in election petitions. The appeal was allowed, and the Misc. Case No. 05(AP)/2010 was dismissed, with parties bearing their own costs.