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

(A) A Notification under Section 30 of the Representation of People Act, 1951 (hereinafter called as the `Act 1951) dated 10.11.2008 was issued by Election Commission for holding elections to constitute 13th Legislative Assembly for the State of Rajasthan including the election scheduled for Nathdwara Legislative Assembly No. 176 (hereinafter called as `the constituency). The appellant as well as the respondent filed their nominations and were candidates of recognised National Parties. The poll was held on 4.12.2008.(B) During the process of polling, there had been allegations/challenges at various booths that at least 10 votes alleged to have been cast by imposters and thus, 10 tendered votes were cast under Rule 42 of the Conduct of Election Rules, 1961 (hereinafter called as the ‘Rules 1961). The counting of votes took place on 8.12.2008 and the appellant contesting on the BJP ticket secured 62216 votes, while Shri C.P. Joshi (INC) secured 62215 votes. At the request of the election agent, a recounting took place under Rule 63 of the Rules, 1961. However, the result remained the same and, thus, the appellant was declared duly elected by a margin of one vote.(C) The respondent filed an election petition on 15.1.2009 being S.B. Election Petition No. 1 of 2009 before the High Court of Rajasthan under Sections 80, 81, 100(1)(d)(iii) and Section 100(1)(d)(iv) of 1951 Act, inter alia, alleging that:(i) Smt. Kalpana Kunwar and Smt. Kalpana Singh (wife of Petitioner) were one and the same person, but her name was registered at two places in the electoral rolls of the constituency and hence she had cast two votes in the election;(ii) Six (6) tendered votes cast in the election must be counted and the six (6) votes originally polled against the tendered votes must be rejected.(D) The appellant filed the written statement contesting the said election petition and the trial is in progress in the High Court.Both the parties have filed several applications before the High Court during the trial of the election petition and the appellant has approached this Court time and again as is evident from the orders dated 16.12.2009 passed in S.L.P. (C) No. 33725 of 2009; 1.4.2010 in S.L.P. (C) No. 8212 of 2010; and 23.4.2010 in S.L.P. (C) No. 10633 of 2010. Appellant filed an application under Order 6 Rule 16 read with Section 151 of the Code of Civil Procedure 1908 (hereinafter called as the ‘CPC) and Section 87 of the Act 1951 for the deletion of paragraph Nos. 13 to 19 of the election petition. The said application was dismissed by the High Court vide order dated 19.11.2009. The appellant preferred S.L.P (C) No. 34688 of 2009 which was dismissed by this Court vide order dated 16.12.2009.(E) The appellant preferred an application being I.A. No. 6839 of 2010 dated 11.5.2010 to summon the marked copies of the electoral rolls; register of voters in Form No. 17-A; and list of tendered votes in Form No. 17-B relating to the polling station Nos. 68, 124 and 192 of the constituency. However, the said application has been dismissed by the High Court vide impugned judgment and order dated 24.5.2010. Hence, this appeal.

Reasoning: 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.