Case: Kalyan Singh Chouhan Vs. C.P.Joshi

Act, the scope of inquiry shall remain confined to two questions—(a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an inquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or(b) any votes were improperly refused or rejected in regard to the returned candidate.(2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected.(3) For the purpose of enabling an inquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) a recrimination petition under Section 97(1) is filed.(4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act.(5) The bar on inquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a re-count the Election Judge finds the result of re-count to be different from the one arrived at by the Returning Officer or when the Election Judge finds that there was an error of counting the bar is not attracted because the Court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or re-counting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of Sub-clause (iv), and not Sub-clause (iii) of clause (d) of Sub-section (1) of Section 100 of the Act." 27. Therefore, in the case at hand, the election petitioner/respondent has claimed only that there has been irregularity/illegality in counting of 6 tendered votes and the case squarely falls within the ambit of Section 100(1)(d)(iii) of the Act, 1951. Election petitioner has further pleaded that the result of the election stood materially affected because of improper receiving the six tendered votes and in absence of any Recrimination Petition in the case the appellant cannot be permitted to lead evidence on the fact which is not in issue. 28. The judgment in Wilfred DSouzas case (supra) has distinguishable features. In that case, the appellant had asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes and a specific prayer had been made by the appellant in the election petition that the election of the respondent be declared void and the appellant be declared to be duly elected. The respondent had denied that the tendered votes were cast by genuine voters. The issue had been framed in that case as under: “Whether the petitioner proves that the vote or votes were initially improperly received and should be removed and in their place tendered vote or votes should be taken into account.” The Election Tribunal therein did not record any evidence on behalf of the respondents and proceeded to decide the case after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant papers had been opened and those papers were examined. In view of the fact that the appellant had adduced prima facie proof in respect of two of the tendered ballot papers, the Election Tribunal was to call upon the respondent to adduce his evidence and the evidence should not be constrained only to the two tendered ballot papers in respect of which the appellant had not adduced any evidence, but would relate to some or all the other 8 tendered ballot papers in respect of which the appellant had not adduced any evidence.That was, admittedly, a case wherein a Recrimination Petition under Section 97 of the Act, 1951 had been filed. In the instant case, there is no such claim made by the parties. In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents. Thus, the judgment in this case is quite distinguishable from the case at hand.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The Election Tribunal therein did not record any evidence on behalf of the respondents and proceeded to decide the case after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant papers had been opened and those papers were examined. In view of the fact that the appellant had adduced prima facie proof in respect of two of the tendered ballot papers, the Election Tribunal was to call upon the respondent to adduce his evidence and the evidence should not be constrained only to the two tendered ballot papers in respect of which the appellant had not adduced any evidence, but would relate to some or all the other 8 tendered ballot papers in respect of which the appellant had not adduced any evidence.That was, admittedly, a case wherein a Recrimination Petition under Section 97 of the Act, 1951 had been filed. In the instant case, there is no such claim made by the parties. In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents. Thus, the judgment in this case is quite distinguishable from the case at hand.