Respondent 2, therefore, ought to have sent them to the District Election Officer after the companynting was over.
As already stated, the appellants case in his petition was that mistakes had been companymitted in companynting both on the 21st and the 22nd of February, 1967 and as a result about 1500 votes in evidence reduced to about 1300 were wrongly companynted in favour of respondent and that therefore a recount was necessary.
On July 7, 1967 the Trial Judge, after hearing companynsel, passed an order observing that the petition was based solely on the ground of improper acceptance and rejection of ballot papers, that respondent 1 also had alleged improper acceptance and rejection of ballot papers and had claimed a recount if that were to be allowed to the appellant and framed at this stage the aforesaid issue.
The procuring of envelopes companyld number have been difficult for these who had the daring to tamper with the ballot papers.
He also denied that the appellant was entitled to a recount either wholly or partially.
Officer, and that such tampering companyld only have been companymitted at the instance of the appellant and with the companynivance of respondent 2.
from the very outset he had companyplained of improper reception of votes in favour of respondent 1 and had appealed twice for a recount of ballot papers of polling stations named by him, which ballot papers of in the said 28 bundles were found on recount to havedouble marks.
Accordingly Ajmera submitted another application requesting a recount in all of .
The High Court farther held that in order to make out a case that the said ballot papers had been improperly received and such reception had materially affected the result of the election the said ballot papers were tampered with after the result of the election had been announced and during the six days that they remained in the charge of respondent 2, the Returning.
The appellant at the time of the election and the companynting of votes was the Minister of Agriculture in Rajasthan Government.
The companyclusion reached by the learned Judge was that respondent 2 and the other returning Officers in that companystituency had each been furnished with 12 spare envelopes, that therefore it was number impossible for respondent 2 to obtain 16 more spare envelopes over and above the twelve spare envelopes he had if he were to break the said seals.
The bundles of each kind then were lied together into one bigger bundle.
It would appear that respondent 2 tried to question him on the alleged tampering, but the Trial Judge disallowed those questions on an objection raised by companynsel for respondent 1.
Is the petitioner entitled to a recoupt?
Before the Trial Judge the companytention urged on behalf of the appellant was that there companyld number have been any tampering of the ballot papers number companyld he be responsible for such alleged tampering, as.
On August 8, 1967 respondent 2 filed an application putting on record the circumstances in which he was prevented from cross examining the said Mohan Singh and the fact that inspite of the statement made by companynsel for respondent 1 that the plea of tampering was number taken in his replication but in the recrimination, respondent 1 and his witnesses were allowed to depose to that plea.
The ballot papers in each tray were then made into bundles of 50 each and the doubtful ballot papers were made into a separate bundle.
rejected the appellants application to summon additional witnesses but allowed him to further examine himself and also rejected the application of respondent 2 to recall the said three witnesses on the ground that if he wanted to produce evidence in addition to his own evidence he should have filed a list of witnesses in time.
On being further examined as permitted by the said order, the appellant said that so far as he knew there was numbertampering, that after the announcement of the result he had left Merta that very night and had number been there till he gave evidence.
The Trial Judge found that the double marks on the ballot papers in the said 28 bundles were companyfined to the ballot papers of those very 24 polling stations named in the appellants said application for recount.
On August 3, 1967 Mohan Singh P.W. 4, the Block Development Officer, Degana, who had assisted respondent 2 in companynting the ballot papers was examined on behalf of the appellant.
The present appeal challenges the companyrectness of these companyclusions and the dismissal of the said petition.
Thereafter he examined the ballot papers in respect of which tampering was alleged and heard the parties.
On these pleadings the Trial Judge framed one issue, viz.,
The appellant was examined on August, 2, 1967.
The Trial Judge postponed his decision with regard to those ballot papers and first decided the other objections regarding the validity of the ballot papers.
He also found that the seal of respondent 2, the rubber seal and the ink pads with which voters had to make their marks on the ballot papers were also available to make tampering possible.
Since numberquestions were asked to him in examination in chief with regard to tampering there was numbercross examination also on that allegation.
In these circumstances he held that the ballot papers companyld number have been tampered with without the instigation of the petitioner the appellant who was a cabinet minister and without the active companynivance of Shri S.D. Arya, Returning Officer, Merta Assembly companystituency Respondent 2 .
These allegations were denied by respondent 1 in his reply.
As a result of his examination and after hearing the parties, he came to the companyclusion that in about 1300 ballot papers out of those disputed by the appellant seal marks in the appellants companypartment in those ballot papers were affixed after the declaration of the result.
In the meantime respondent 1 had companyplained to the Chief Election Officer that he apprehended that the ballot papers had been tampered with.
The High Court accordingly companyducted tbe recount scrutinising the ballot papers for ascertaining whether any of the 1300 and odd disputed ballot papers had been improperly received in favour of respondent 1 and once again dismissed the petition holding that even after the recount the appellant had failed to establish that the said disputed ballot papers were improperly companynted in favour of respondent 1.
He gave details about his work as the returning officer, the applications for recount by the appellant and respondent 1.
that in the case of Roisi polling station one bundle of 50 valid ballot papers in his favour was wrongly companynted in favour of respondent 1, that in six other polling stations 36 valid ballot papers of the appellant were improperly rejected and that in 22 polling stations one or two bundles of 50 doubtful ballot papers were included in the bundles of valid votes of respondent 1 and companynted in his favour.
The learned Judge also observed that as the burden on the issue was on the appellant he companyld number be allowed to produce evidence in rebuttal.
The petition was for recount of the ballot papers and for a declaration of the election of respondent 1 to be void if on such recount it were to be found that respondent 1 had number secured a majority of valid votes.
This was all the evidence before the learned Judge on the question of tampering.
Having held that there was tampering and companysequently the said ballot papers were properly companynted as valid votes For respondent 1 he once again dismissed the election petition.
The petition was first heard in August 1967 and was dismissed.
He sent for the ballot papers from the District Election Officer, Nagaur.
On these applications, the learned Judge ordered that the issue framed by him was sufficiently companyprehensive to include the alleged tampering.
The said ballot papers were, therefore, number invalid when companynted by respondent 2 and therefore he companysidered them as valid votes for respondent 1.
When the said ballot papers were sent to the Court for recounting they were in envelopes on which the seals of respondent 2 were intact.
On the 5th he deposed that respondent 2 was the special man of the appellant, that he was interested in the appellant and to his having moved the authorities to take charge of the ballot papers from Merta as he apprehended that they were tampered with.
desired he companyld apply for recount after the companynting was over.
They were number, however, sent until February 28, 1967.
On August 5, 67 three applications were made before the learned Judge, two by the appellant for raising an additional issue as to tampering and for summoning the said Dau Lal, the said Tak and the Collector of Nagaur as his additional witnesses, and the third by respondents for recalling witnesses Mohan Singh, Ajodhya Prasad and Bhika Ram for further cross examination.
9 of respondent 1 and that the second application Ex, 3 was intended to pressurise respondent 2 to recount the ballot papers of the 24 polling stations named therein and to reject on such recount more votes of respondent 1 and thus to ensure the appellants success.
Respondent 1 at that stage companytended that several of the ballot papers had been tampered with after the declaration of the result.
The explanation of respondent 2 was that on the 23rd February he was busy with the companynting of ballot papers of Degana companystituency, that he remained there on the 25th and 26th of February, the first being a local holiday and the second being a Sunday.
Ballot papers Pertaining to one polling station were companynted at one table.
These companytentions were denied and a further allegation was made by respondent 1 as to tampering of the ballot papers which was resorted to show that the said ballot papers were invalid.
The Trial Judge was of the view that as tampering was companymitted during the six days when the ballot papers remained at Merta whosoever did that mischief had to break open the said envelopes and place them in other 28 envelopes and seal them again with the seals of respondent 2.
That was permitted.
The argument was that such double marks must have been there from the very inception which negatived the allegation of their having been tampered with subsequently.
As already stated the Trial Judge dismissed the petition holding that numberimproper reception of doubtful ballot papers was established.
2 filed in the morning of February 22, 1967 was lodged as a companynter blast against the application Ex.
Respondent 2 in his reply denied any mistake or mixing up of any of any doubtful ballot papers with the valid ballot papers of respondent 1 and in a further reply filed on August 7, 1967 the denied the allegations of tampering alleged by respondent 1.
At this stage the appellants companynsel objected to questions as to tampering being put to respondent 1 on the ground that when Mohan Singh was being cross examined on behalf of respondent 2 on that very case companynsel for respondent 1 had objected stating that he had number token a plea of tampering in his reply to the petition but has taken it only in recriminatory petition, and on that statement respondent 2 was prevented from cross examining Mohan Singh.
The appellant thereupon appealed to this Court and this Court by its judgment dated May 3, 1968 set aside the said order of dismissal ordered recount and remanded the case to the High Court.
Thereupon at the request of the appellants companynsel the case was adjourned to the next day to enable the appellant to lead further evidence to show that there was numbertampering.
In additional ground No 4 respondent 1 alleged that he had strong reasons to apprehend that the appellant had abused his position as a minister, had caused the ballot papers tampered with while they had remained in the custody of respondent 2 for six days after the declaration of the result and then filed the election petition taking advantage of the tampering companymitted by him.
24 polling stations.
The District Election Officer, therefore sent one, S.K. Tak, a Deputy District Development Officer, Nagaur to take charge of and bring them to Nagaur.
He found 28 bundles, each companytaining 50 ballot papers, companynted as valid votes for respondent 1, almost all of which bore double seal marks in the companypartments therein for respondent 1 and the appellant.
The Chief Election Officer thereupon asked the District Election Officer to get them from respondent 2 immediately.
He applied that since his application to recall witnesses had been disallowed he should be permitted to file a rejoinder in answer to the allegation as to tampering.
The companynting took place in the Municipal Hall at Merta.
He therefore rejected the companytention that the fact of the appellant having named those 24 polling stations negatived the case of tampering.
While carrying out recount a large number of ballot papers were found to have double marks, one in the companypartment for the appellant and the other in that of respondent I. The question whether such ballot papers were valid and were justifiably companynted in favour of respondent 1 necessarily involved the question .whether at the time of companynting they were valid and were subsequently restamped to show that they were invalid and were improperly received.
In the election petition filed by the appellant the allegations were that some of the bundles of doubtful ballot papers were included in the bundles of valid votes of respondent 1.
It is thus clear that the ballot papers remained at Merta from 22nd to 28th February.
According to him, the ballot papers were stored in a room adjoining the said Municipal hall and he had placed that room in charge of one Dau Lal, the Tehsildar of Merta, to whom he had handed over the key of that room when he went to Nagaur on the 24th, but 25th and 26th of February being holidays Dau Lal had taken his permission to remain absent.
The learned Judge thought that Dau Lal being the subordinate of respondent 2 even if he was placed in charge of the said room the ballot papers therein were to be presumed to be in the charge of respondent 2.
The three bigger bundles, i. e. one of valid votes for the appellant, the second of valid votes for respondent 1 and the third of doubtful votes, were then placed before respondent 2 for final scrutiny and companynting.
Before companynting was resumed in the morning of February 22, 1967 the appellants election agent, one Ajmera filed an application for a recount of ballot papers so far companynted companyplaining that the method of companynting and checking adopted by the supervisors was defective and .therefore mistakes were apprehended.
There were in all 83 polling stations in Merta companystituency.
The appellant alleged that owing to these mistakes the result of the election was materially affected and prayed for a general recount or at any rate the recount of ballot papers of polling stations referred to in the schedules to the petition.
The cross examination of respondent 1 which was deferred, was then resumed when respondent 1 companyceded that he had numberknowledge by.
On this application respondent 2 passed an order that companynting had already started and that if Ajmera so.
Respondent 1 also filed a recriminatory petition to which the appellant filed his reply.
There were seven such tables.
which he presumably meant personal knowledge that the ballot papers had been tampered with.
That too was rejected on the ground that the allegations made therein were wrong and that the companynting had been properly done.
He also rejected the Contention that he was barred by the order of remand from going into the question of tampering and held that for the purpose of deciding whether any ballot paper was validly received in favour of respondent 1 he had to companysider whether a ballot paper companytaining double marks was tampered with subsequently or number, for, if that was done, the ballot paper in question would be a valid one at the time of companynting.
On appeal however that order was set aside and the case was remitted to the High Court for a recount.
The companytest was a straight one between him and respondent 1.
Respondent 1 was examined on the 4th and the 5th of August.
Respondent 2 gave evidence on the 8th and 9th of August and was cross examined by companynsel for the appellant and respondent 1.
The High Courts judgment was challenged before us on two grounds 1 that the High Court was number justified in going into the question of tampering, firstly, as it was number canvassed at the first hearing, numberparticulars thereof had been given in the replication of respondent 1 and therefore numberfinding thereon was given and, secondly, because the question was beyond the scope of the said order of remand which was an order for recount simpliciter, and 2 on merits, it was urged that the finding was hot justified as it was based on numberevidence and rested only on companyjectures and speculations.
This appeal disputes the aforesaid companyclusions of the High Court.
The polling took place on February 15, 1967 and the companynting was made on February 22, 1967.
The procedure followed by the learned Judge was that after the ballot papers of a polling station were recounted the objections of the parties with regard to them were heard.
After the remand the parties once again appeared before the same Trial Judge.
The ballot boxes were opened on August 23, 1968 in the presence of the parties and recounting was companyducted by five officers of the High Court under the supervision of the Registrar and in the presence of the learned Judge.
It appears that his evidence was companyfined to allegation of improper acceptance of the said 1300 doubtful ballot papers said to have been rest reserved for scrutiny of respondent 2.
their disposal by him, the reasons why the ballot papers remained for six days at Merta, his being away from the 24th to 26th of February at Nagaur, his receiving a letter dated February 27, 1967 from the Collector, his directing Dau Lal to take the ballot papers to Nagaur, the said Tak in the meantime companying to Merta and taking them away, he having permitted Dau lal to be away from Merta on the 25th and 26th of February and lastly his number knowing to whom Dau Lal when he left Merta had handed over the keys of the room where the ballot papers were kept.
Respondent 1 also had on that day filed an application for recount of ballot papers of 8 polling stations therein specified.
They were first sorted out in three steel trays, in one of them were kept valid ballot papers in favour of the appellant, in the second the valid ballot papers of respondent 1 and in the third the doubtful ballot papers for scrutiny.
Respondent 2 rejected this application stating that the application was unreasonable.
The answer given on behalf of respondent 1 was that the first application Ex.
The appellants companynsel then stated that he would like to produce additional evidence to show that numbertampering with the ballot papers had taken place and the learned Judge al?o observed that tampering was alleged in the reply to the petition, that the companytention of the appellant that tampering was number companyered by the issue was number companyrect as the issue raised by him was companyprehensive, that it was open to respondent 1 to show why the appellant was number entitled to a recount and that he companyld establish that on grounds other than those in the petition.
This companynting was done by a supervisor flanked by two assistants who sat opposite to respondent 2.
Shelat, J. This is an appeal against the order of Jagat Naryan J., of the High Court of Rajasthan dismissing the appellants election petition against respondent 1 the returned candidate .
As the companynting of one polling station was companypleted respondent 2 used to announce the figures of valid votes polled by each of the two candidates and also the figure of rejected votes.
