Hari Shankar
Prasad Vs. Shahid Ali Khan & Ors [2003] Insc 168 (13 March 2003)
R.C.Lahoti
& Brijesh Kumar. Brijesh Kumar, J.
This
is an appeal under Section 16(A) of the Representation of People Act, 1951 (for
short 'the Act') against the judgment of the Patna High Court dismissing the
election petition filed by the appellant and upholding the election of
respondent no.1 to the State Assembly.
The
appellant Hari Shankar Prasad contested the election held in February, 2000 as
a candidate for Sitamarhi Assembly Constituency No.67 in the State of Bihar. He was a B.J.P. candidate whereas
the respondent no.1 Shahid Ali Khan, who has been declared elected has been a
candidate of Rashtriya Janta Dal. A number of other candidates were also in the
fray. The polling was held on 22.2.2000, the counting was done on 25.2.2000 and
the result was declared on 27.2.2000. Respondent No.1 Shahid Ali Khan was
declared elected defeating his nearest rival, namely, the appellant Hari Shankar
Prasad by a margin of 35 votes.
The appellant
filed an election petition inter alia on two grounds which seem to have been
pressed before the High Court one in respect of rejection of 90 votes casted in
his favour and the other about loss of a bundle of another 50 ballot papers in
his favour. The High Court has not accepted either of the grounds which have
now been raised in this appeal but the learned counsel for the appellant has
confined his submissions in regard to rejection of 90 ballot papers which were casted
in his favour. In the fourth round of the counting of the votes of Booth No.49
at Table No.7, it was found that 90 ballot papers in favour of the appellant
were marked by the stamp of "distinguishing mark" used by the polling
officer while issuing the ballot paper and not by the stamp meant for voting.
These ballot papers were separated and not counted for the appellant. The
polling agent of the appellant raised objection and lodged a protest in writing
to the Returning Officer but of no avail. A fax message was flashed to the Election
Commission, on behalf of the appellant. A reference also seems to have been
made to the Election Commission of India by the Returning Officer of No.67 Sitamarhi
Assembly Constituency. The Election Commission in response thereof issued the
directions on 26.2.2000, a copy of which has been placed on the record as
Annexure P-7. It reads as follows :
"..If
the Presiding Officer or the polling staff has, by mistake, supplied the
distinguishing mark stamp to voters for making ballot papers, the ballot papers
so marked should not be rejected" The Returning Officer, after considering
the matter, rejected 90 ballot paperts which were in favour of the appellant
and declared the respondent no.1 Shahid Ali Khan as elected by a margin of 35
votes. The order declaring the result and containing the reasoning rejecting
the objections of the appellant is Annexure P-8, relevant portion of which is
extracted as below :
".Vide
letter no.459/BR-LA/2000 (67) an order was received from the commission that
those 90 ballot papers which had distinguishing mark stamps may be counted by
considering them to be correct. It is relevant to mention that those ballot
papers were counted during counting. As they have been counted once, there is
no need to recount them and they are in favour of one party. Information with
respect to same was given to all election agents/candidates, who signed the
result sheet of that round in this constituency in other booths and in 68, Bathnaha
Assembly Constituency, decision had been taken to reject such ballot papers at
the time of counting. 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 cross instrument" According to the appellant the 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 a half hours. Later on on detection of the
fault in providing the 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 for any particular candidate. The case of
the appellant is that since the mistake is that of the polling staff such votes
bearing the marking of distinguishing mark could not be rejected and have to be
counted in favour of the appellant.
Respondent
no.1 refuted the allegations made by the appellant challenging his election and
a Recriminatory Petition was also filed setting up a case of booth capturing by
the appellant along with his son and other anti-social elements and during that
period it is alleged that the appellant committed corrupt practice as defined
under Section 83 of the Act. The 90 votes, therefore, were rightly rejected by
the Returning Officer.
Both
parties have led evidence, documentary as well as oral, in support of their
respective case. As indicated earlier, the High Court did not accept the case
of the appellant and dismissed the petition. It may, however, have to be
examined whether there was any mistake or not on the part of the polling staff
in providing a wrong rubber stamp by reason of which the mark other than prescribed
for marking the ballot paper by a voter has been used making the ballot paper
liable to be rejected. It may also have to be seen whether there has been any
booth capturing as alleged by respondent no.1 to explain the marking of 90
ballot papers by rubber stamp meant for putting distinguishing mark by the
polling staff.
In
connection with the above controversy, relevant provisions of The Conduct of
Election Rules, 1961 (for short 'the Rules') may be perused. Rule 39 deals with
Maintenance of secrecy of voting by electors within polling station and voting
procedure. Rule 39(2)(b) provides as under :
"39(1)
xxx xxx xxx (2) The elector on receiving the ballot paper shall forthwith
(a) xxx
xxx xxx
(b) there
make a mark on the ballot paper with the instrument supplied for the purpose on
or near the symbol of the candidate for whom he intends to vote;
(emphasis
supplied)
(c) xxx
xxx xxx"
Rule
56 deals with Counting of Votes. Rules 56(2)(b) reads as under :
"56(1)
xxxx xxx xxx (2) The returning officer shall reject a ballot paper (a) xxx xxx xxx
(b) if it bears no mark at all or, to indicate the vote, it bears a mark
elsewhere than on or near the symbol of one of the candidates on the face of
the ballot paper or, it bears a mark made otherwise than with the instrument
supplied for the purpose, or (emphasis supplied) (c) xxx xxx xxx" From the
perusal of the above provisions, it is clear that the ballot paper is liable to
be rejected in case it bears a mark made otherwise than by the instrument
supplied for the purpose i.e. to say if the mark has been made by an instrument
supplied by the polling staff, the ballot paper would not be liable to be
rejected. As indicated earlier, both parties have adduced oral and documentary
evidence in support of their case. The High Court has rejected the case of the
appellant on the ground that besides the polling officer PW 5 Awadhesh Kumar no
other witness was produced in support of the case that wrong seal was supplied
to the voters. It has also been found that the diary of the presiding officer
does not mention about the supply of the wrong seal. Therefore, the case of the
petitioner was not accepted. It is also observed that it was for the first time
in the Court that PW 5 Awadhesh Kumar had made a statement that wrong seal was
given by him by mistake to the voters which was later on taken back and correct
seal was supplied. The High Court has also observed that in the election
petition and other protest applications it was not indicated that wrong seal
was provided by PW 5 Awadhesh Kumar. The High Court has also heavily relied
upon the fact that after getting instructions from the Election Commission of
India the returning officer had considered the matter and had rejected the
objection raised by the petitioner.
So far
the case of the respondent no.1 regarding booth capturing is concerned the
Court has held that such allegations have not been proved nor any such
allegation was made ever before at any point of time. Therefore, the case of
booth capturing as set up by respondent no.1 was also rejected.
In the
above background we may examine the reasons assigned by the High Court in not
accepting the case of the petitioner and further as to how far such reasons are
sustainable on the material available on record.
Learned
counsel for the appellant has firstly drawn our attention to the averments made
in the election petition, more particularly, to paragraph 12 of the petition
wherein it is averred that in round no.4 at table no.7, booth no.49, 93 ballot
papers found polled and marked in favour of the petitioner, were deliberately
put in the column of the doubtful votes and were wrongly rejected by the
returning officer in violation of Rule 56 of the Conduct of Rules, 1961.
In para
13 it is averred that election agent of the petitioner had lodged a protest
then and there on 25.2.2000 itself during the course of the counting. It is
further averred that counting was stopped for sometime telling the agent that
the matter was being referred to the election commission for seeking its
instructions. In para 17 it has been averred that despite the instructions of
the Election Commission of India the returning officer had wrongly rejected 90
ballot papers marked in his favour. It is also averred that the polling staff
by mistake had supplied the seal of the "distinguishing mark" to the
voters. We also find that the fax message sent by the returning officer to the
Election Commission of India, a copy of which has been placed on record as
Annexure P-6, mentions in column 5 under the heading "any other unusual
feature" as follows :
"90
polled ballot papers were found which were not polled with the prescribed stamp
but were stamped with distinguishing mark which was considered as doubtful
while counting and were rejected after hearing vote is only 35, therefore the
matter is being referred to Election Commission for permitting the Returning
Officer to declare the result." The reply of the election commission dated
26.2.2000 has already been quoted in the earlier part of this judgment. These
facts leave no room to doubt that right from the very beginning a protest has
been made on behalf of the appellant regarding non-counting of 90 votes in his favour.
The
Election Commission has very clearly instructed to the Returning Officer that
if the Presiding Officer or the polling staff 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 validly 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 observes "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 cross instrument". 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.49. The petitioner, to substantiate his
case examined PW 5 Awadhesh 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 person 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 came 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, Awadhesh
Kumar to be supplied to the voters.
The
Returning Officer himself has come to the conclusion that only 90 ballot papers
were marked by a wrong stamp and since all other ballot papers were not wrongly
stamped would not lead to inference that it was not due to mistake of the
polling staff, which inference has been wrongly drawn by the Returning Officer.
It rather goes to show that as soon as the mistake was detected the wrong stamp
was withdrawn as a result of which after the withdrawal of the wrong stamp rest
of the ballot papers were stamped by a correct stamp. At the risk of repetition
we may again mention that the theory of booth capturing which could perhaps
explain this kind of wrong seal on the ballot papers, has been discarded by the
High Court. The circumstances indicated by PW 5 in his evidence provides a
plausible reason, as to how only 90 ballot papers were stamped by
distinguishing mark and not the rest of them.
It is
also incorrect on the part of the High Court to say that in the petition, no
such case was pleaded. We have referred to the averments made in para 17 of the
election petition that by mistake polling staff had supplied a wrong stamp. The
case of supply of wrong stamp was very much pleaded right from the initial
stage.
The
Returning Officer has been examined as DW 5. In his cross-examination he has
stated that he had reinvestigated the matter regarding wrongly stamped 90 votes
in the presence of the Central Observer and he was quite satisfied that no
mistake was committed either by the Presiding Officer or by the polling
officer. In reply to the another question he stated as follows :
"If
the Central Observer had written anything to the Election Commission of India
in the following manner :
"Speaking
order passed by Returning Officer on the decision/order of ECI which I could
get from him after lot of persuasions. The complaint given to me by BJP
candidate after declaration of result is also enclosed as Annexure-C. From the
perusal of my report, it is quite clear that the R.O. has not complied with the
orders of ECI and the instructions of the Observer. His action smacks of favouritism
in favour of winning candidate, perhaps under political pressure." then
the same is totally false and biased" In the later part of his statement
he further states as follows :
"Regarding
the distinguishing marks and the seals in those ballots had not been enquired
and verified specifically from the polling staff." 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 distinguishing mark 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 votes. 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. In this background we find that there was
no reason, not to accept the statement of PW-5 one of the polling officers who
as per his duty as assigned, had supplied the stamp to the voters and has
further stated that the stamp was withdrawn about one and a half hours after
the voting started, where after correct stamp was supplied by the Presiding
Officer. His statement is fully supported by the circumstances.
On
behalf of respondent no.1, a reference has been made to a decision reported in
(1970) 2 SCC p.462, the duty of the petitioner to prove the fact that the
ballot papers were marked by the stamp issued by the polling staff. In absence
thereof, the ballot papers were held to be rightly rejected. There is no
dispute about the proposition of law and in this case, in our view, the
petitioner has proved the fact that stamp was supplied by the polling staff by
examining PW 5, one of the polling officers whose duty it was to provide the
rubber stamp to the voters. On behalf of the appellant reliance has been placed
upon the decision of this Court reported in (1999) 8 it has been held that
where supply of wrong instrument is due to mistake of the polling officer to
the voters and the ballot papers having been marked by such stamp as supplied
wrongly, they are not liable to be rejected.
On
consideration of all the material available on the record, we find that the
wrong stamp was made available 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.
For
the discussion held above, the election petition is allowed with costs. The
declaration of respondent no.1 as elected is set aside and the petitioner
appellant is declared elected from Sitamarhi Assembly Constituency No.67, State
of Bihar.
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