9911796707
TMI Blog2012 (2) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... llant and the respondent No. 1 herein contested the election to the Arunachal Pradesh Legislative Assembly from 20-Tali (ST) Assembly Constituency held in October 2009, wherein the appellant was declared elected, defeating his nearest rival respondent No. 1, by 2713 votes. Respondent No. 1 filed Election Petition No. 01/2009 to challenge the election of the appellant on the ground of corrupt practice of booth capturing. This 20-Tali (ST) Assembly Constituency consists of two circles viz. (i) Tali, and (ii) Pipsorang. Each of the circles was having 10 polling stations. The voting had taken place on 13.10.2009. It was alleged that on two polling stations viz. (i) 7-Roing and (ii) 2-Ruhi from circle Tali, boxes (containing EVMs) were illegally removed by the party workers of the appellant, and votes in favour of the appellant were cast by a single hand. The common voters were not allowed to exercise their voting rights as they were threatened for their lives by the miscreants of the appellant. It was claimed that polling agents of the first respondent at these two polling stations jointly reported about the happenings in these polling stations on 15.10.2009 to the Assistant Returning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6/2010 in the said Election Petition on 29th March, 2010. In para 1 thereof he submitted as follows:- "1. That your applicants beg to state and submit that some thousand of voters of those 8 polling stations viz. (i) Giba, (ii) Tungmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5- Guchi, (vii) 8-Dotte, (viii) 2-Ruhi of 20 Tali (ST) Assembly Constituency have double entry in different 38 polling stations of 13-(ST) Itanagar Assembly Constituency. So far your applicant knowledge is concerned about 80% of the voters of 20-(ST) Tali Assembly Constituency from those 8 polling stations viz. (i) 6- Giba, (ii) 4-Tugnmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi have cast their votes at 13-(ST) Itanagar Assembly Constituency and not at 20-(ST) Tali Constituency." Thereafter, he gave the list of 38 polling stations of Itanagar constituency. He claimed that the total number of such voters who had their names in those 38 polling stations was 1304. He, therefore, prayed that the record of register of voters counterfoils (Form 17-A) of the above 38 polling stations of 13- (ST) Itanagar Assembly Constituency from the District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollment in the two constituencies. He explained it by stating that he did not know that such double enrollment had taken place. He could not say who actually cast the vote for Markio Tama, who had already expired. He accepted that he had appointed his polling agents for all the polling stations. He knew about the duties of the polling agents which included raising objection in case of detection of any impersonation during the polling time, before the Presiding Officer concerned by filling up a prescribed form alongwith a fee of ₹ 2/-. He stated that his polling agents were not allowed to enter into the polling booths and the candidates appointed by the appellant acted as fake polling agents for the first respondent. He however, accepted that he has not stated in election petition that the candidates appointed by the opposite party had acted as fake polling agents for him. He further accepted that his complaint to the Returning Officer did not mention all the 8 polling stations. It mentioned only about 2 polling stations. He also accepted that he did not mention the names of persons involved in booth capturing. The first respondent had alleged that in two polling stations viz. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd counter foils should be called sparingly and only when sufficient material is placed before the Court. He also referred to a judgment of this Court in Fulena Singh Vs. Vijoy Kr. Sinha reported in 2009(5) SCC 290 wherein it was held that inspection of register of voters in Form 17-A would be permissible where a clear case is made out. The learned Single Judge held that the official record would be the most reliable evidence where there was impersonation, and thereafter passed the impugned order calling for the record of registers of voters counterfoils in form 17A of 38 polling stations of 13-(ST) Itanagar Assembly Constituency which order is challenged in the present appeal. Submissions on behalf of the rival parties 12. Mr. Giri, learned senior counsel appearing for the appellant submitted that the learned Judge of the High Court clearly erred in allowing the second application filed by the first respondent for the simple reason that he was making a roving and fishing inquiry. Mr. Giri submitted firstly that if the respondent No.1 was concerned with the alleged double entries of the voters in the two constituencies, he ought to have challenged the double enrollment when the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one has to object to such double entries when that draft electoral roll is published, but he explained his inaction in this behalf by stating that he did not know that such double enrollment had taken place. With respect to impersonation, he cited the instance of only one person, namely Markio Tama who had expired, but he could not state as to who voted in his place. He accepted that the polling agents have to object when such impersonation takes place, but explained inaction of his polling agents by saying that his polling agents were not allowed to enter into the polling booths and the candidates appointed by the opposite party acted as fake polling agents for him. He however, accepted that such plea was not taken in the election petition. He also accepted that his complaint about double voting was only about 2 polling stations, and that he did not mention all the 8 polling stations in his complaint. He had to accept that he did not mention the names of persons involved in the booth capturing. The first respondent had emphasized the fact that in Ruhi he got only 3 votes as against appellant getting 697 votes. In Roing he got only one vote as against appellant getting 1196 votes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the first respondent made the grievance of booth capturing which is a corrupt practice covered under Section 123 (8) of the Act of 1951. Committing a corrupt practice is a ground to declare an election void under Section 100 (1) (d) of the Act. Booth capturing is also made an offence under Section 135 A of the Act, and the term `booth capturing' is spelt out in the explanation to that section. (ii) Section 135 A alongwith the Explanation reads as follows: 135A. Offence of booth capturing - [(1)] Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which [shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine. Explanation - For the purpose of [this sub-section and section 20B], "booth capturing" includes, among other things, all or any of the following activities, namely:- (a) seizure of a polling station or a place fixed for the poll by any person or persons making pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the first respondent that the appellant had appointed fake polling agents for the first respondent was a clear after thought, since if it was so, he would pleaded the same in the election petition itself. He has not mentioned the names of the persons allegedly involved in booth capturing. Even with respect to impersonation, the only instance pointed out was that of one Markio Tama, but it was not stated in the petition or in evidence as to who voted in his place. It is thus obvious that having failed to place any material with respect to either booth capturing or impersonation, the first respondent was trying to make fishing and roving inquiry to improve his case by calling for the record of the voters register from Itanagar Constituency, in support of his grievance of double voting. In the absence of any evidence with respect to the persons who at the instance of the appellant allegedly captured the booths or made double voting or impersonation in Tali Constituency, no such inference could have been drawn against the appellant. The learned Single Judge, therefore, was clearly in error in allowing the second application made by the first respondent. 20. Besides, the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gally incorrect......." In Hari Ram also there was a grievance that there were a number of dead persons for whom votes were cast. No details and particulars were given that votes were actually cast for dead persons. This Court held that it was nothing but a fishing inquiry and it clearly violated the sanctity and secrecy of the electoral process. 22. (i) Rule 93 of the Conduct of Election Rules, 1961 governs the production and inspection of election papers. Sub-rule 1 thereof is relevant for our purpose and it reads as follows:- "93. Production and inspection of election papers - (1) While in the custody of the district election officer or, as the case may be, the returning officer - (a) the packets of unused ballot papers with counterfoils attached thereto; (b) the packets of used ballot papers whether valid, tendered or rejected; (c) the packets of the counterfoils of used ballot papers; (d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub section (1) or sub-section (2) of section 152; and [(dd) the packets containing registers of voters in form 17- A;] (e) the packets of the declaration by electors a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in AIR 1975 SC 2117, discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void. 24. The impugned judgment has relied upon the judgment of this Court in Fulena Singh (supra). In that matter also there was an allegation of double voting, and the inspection of register of voters in Form 17-A was sought. In para 13 of the judgment the Court noted the submission on behalf of the respondent that the registers of voters in Form 17-A do not enjoy the same immunity as that of the other papers mentioned in clauses (a) to (d) and (e) of Rule 93 (1). This Court did not accept that submission, and held that inspection of election papers mentioned in detail in the entire Rule 93 (1) is not a matter of course unless a clear case is made out. The Court, therefore, disallowed the inspection of register of voters in Form 17-A. Thus, the reliance on Fulena Singh (supra) in the impugned judgment was also wholly erroneous 25. This being the position, in our view the order passed by the learned Single Judge is illegal and unsustainable. We are, therefore, req ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
